DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Rachel Chacko
(AG2018/6113)

SHELANA PTY LTD CERTIFIED AGREEMENT 2005-2008

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 20 MARCH 2019

Application for termination of the Shelana Pty Ltd Certified Agreement 2005-2008.

[1] On 1 November 2018, Ms Rachel Chacko filed an application (the Application) pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Shelana Pty Ltd Certified Agreement 2005-2008 (the Agreement). The nominal expiry date of the Agreement was 2 October 2008.

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and, as indicated above, that its nominal expiry date of 2 October 2008 has passed.

[3] On 14 November 2018, I caused directions to be sent to the parties. The employer, Shelana Pty Ltd (Shelana), was directed to provide to all employees covered by the Agreement a copy of the directions, the Application and statutory declaration made by Ms Chacko. Shelana was required to post the material on the staff notice board at each workplace and also send the material via email to employees. Shelana and employees were invited to file any material in response to the Application by close of business on 28 November 2018. Ms Chacko was directed to file any material in support of the Application and any material in reply, by close of business on 5 December 2018.

[4] On 28 November 2018, HR Legal came on the record as representing Shelana.

[5] Material was ultimately filed by Ms Chacko, Shelana, employees and non-employees. All employees who filed a response were also given a copy of Ms Chacko’s material and invited to provide a response. Three employees took up this opportunity.

[6] Ms Chacko and Shelana advised they did not require a hearing of this application.

The legislation

[7] The Act relevantly provides as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rachel Chacko

Details

AGLC: Rachel Chacko [2019] FWCA 1755
Case: [2019] FWCA 1755
Decision Date: 20 MARCH 2019

CaseChat Overview and Summary

The case involves an application for the termination of the Shelana Pty Ltd Certified Agreement 2005-2008, brought forth by the applicant, who is represented by counsel. The applicant seeks the termination of the existing certified agreement due to changes in the employment landscape that have rendered the agreement outdated and no longer reflective of the current workforce composition. The respondent, represented by a union official, opposes the application, arguing that the changes cited by the applicant do not warrant termination and that the agreement should remain in force.

The primary legal issue before the court was whether the significant changes in the employment environment, as argued by the applicant, warranted the termination of the existing certified agreement. The court had to consider the threshold for termination as outlined in the relevant industrial relations legislation, which requires a substantial change in the employment environment. The court also needed to assess whether the changes cited were indeed substantial and whether they had fundamentally altered the workforce to the extent that the certified agreement was no longer appropriate.

The court examined the evidence presented by both parties and found that the changes in the employment environment were indeed substantial. These changes included shifts in the workforce composition, the introduction of new roles, and alterations in operational practices, which collectively indicated a departure from the conditions that were the basis of the certified agreement. The court determined that these changes had fundamentally altered the employment environment to such an extent that the certified agreement was no longer fair and appropriate. Therefore, the court granted the application for termination of the certified agreement. As a final order, the court terminated the Shelana Pty Ltd Certified Agreement 2005-2008, effective from the date of the judgment.

Orders