Ramsden Investments Pty Ltd T/A Upper Burnie Newsagency and Post Office

[2021] FWCA 833

[2021] FWCA 833

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Ramsden Investments Pty Ltd T/A Upper Burnie Newsagency and Post Office
(AG2021/122)

JONATHAN INVESTMENTS PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Retail industry
COMMISSIONER LEE	MELBOURNE, 17 FEBRUARY 2021

Application for termination of the Jonathan Investments Pty Ltd Employee Collective Agreement 2009.

[1] This decision concerns an application made by Ramsden Investments Pty Ltd T/A Upper Burnie Newsagency and Post Office (the Applicant) for the termination of the Jonathan Investments Pty Ltd Employee Collective Agreement 2009 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act) and Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date. The employer covered by the Agreement has made and is entitled to make application to the Fair Work Commission to terminate the agreement.

[3] Item 16 of Schedule 3 to the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Section 225 of the Act provides:

“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;

(c) an employee organisation covered by the agreement.”

[5] Section 226 of the Fair Work Act 2009 (the Act) sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act:

“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 all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[6] With its application, the Applicant lodged a statutory declaration declared by Sandra Ramsden (Company Owner) stating that it wishes to make an application for the unilateral termination of the Agreement on the basis that:

“•  The Agreement has passed its nominal expiry date and does not reflect modern work practices or requirements of the business.

•  The business has changed owners and the new Employer has other newsagency businesses where its employees are covered under the General Retail Industry Award.

•  The Agreement causes unnecessary burden on the Employer having to pay different rates to employees in the newsagencies.

•  Our preference is for employees to be paid in accordance with the General Retail Industry Award.

•  The four casual employees, covered under the Agreement, have been informed in writing advising of the potential termination of the Agreement and asking if they had any queries. Feeedback from employees - agree to be covered under the General Retail Industry Award.

•  All employees currently covered under the Agreement will be better off overall under the Award.”

[7] On 29 January 2021, my Chambers wrote to the Applicant directing that the Applicant take action to enable me to obtain information in relation to the views and circumstances of employees. Specifically, by the employer forwarding or handing to the employees covered by the Agreement a notice (the Notice) in the following terms, as well as providing a statutory declaration indicating that it had taken the relevant steps:

“An application has been made by theRamsden Investments Pty Ltd T/A Upper Burnie Newsagency and Post Office to terminate the Jonathan Investments Pty Ltd Employee Collective Agreement 2009.

The matter has been allocated to Commissioner Lee of the Fair Work Commission for determination.

If the application to terminate the Jonathan Investments Pty Ltd Employee Collective Agreement 2009 is successful, your minimum employment entitlements will be regulated by the General Retail Industry Award.

Commissioner Lee, when determining whether to terminate the agreement, is required to take into account the views of employees covered by the agreement.

If you have any views about the application to terminate the agreement, please advise the Commissioner by email at [e-mail] or by calling [phone]. Views are to be provided to the Fair Work Commission by no later than 4.00pm on Friday, 5 February 2021.”

Once this course of action is followed, the Commissioner asks that the employer provides in writing details of the action it took to make the Notice available to employees in a statutory declaration.”

[8] On 3 February 2021, I received a statutory declaration, declared by declared by Sandra Ramsden, stating that the Notice had been emailed to all employees.

[9] No opposition to the application was received from or on behalf of any party.

[10] Having regard to the above, I am satisfied, in accordance with s. 226(a) of the Act, that it is not contrary to the public interest to terminate the Agreement. I am also satisfied, in accordance with s. 226(b) that it is appropriate to terminate the Agreement having regard to the circumstances of the employees, employers and organisations covered by the Agreement, including the likely effect that the termination will have on each of them. I am therefore required under s.226 of the Act to terminate the Agreement.

[11] In accordance with s.226 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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