DECISION

Fair Work Act 2009
s.225 – Enterprise Agreement

Revlon Australia Pty Limited
(AG2019/4199)

SDA-REVLON AUSTRALIA ENTERPRISE AGREEMENT 2016

Storage services
DEPUTY PRESIDENT KOVACIC	CANBERRA, 25 JUNE 2020

Application for termination of the SDA – Revlon Australian Enterprise Agreement 2016 – application granted – Agreement to be terminated with effect from midnight on 30 June 2020.

[1] On 4 November 2019 Revlon Australia Pty Limited (Revlon – the Applicant) filed an application made under s.225 of the Fair Work Act 2009 (Cth) (the Act) seeking to terminate the SDA – Revlon Australia Enterprise Agreement 2016 (the Agreement) 1. The Agreement has nominal expiry date of 6 June 2018.

[2] The Shop, Distributive and Allied Employees’ Association (SDA), which is covered by the Agreement, opposes the Application.

[3] The Application was heard by the Fair Work Commission (the Commission) on 11 and 12 February 2020. At the hearing, Mr Michal Roucek appeared with permission for the Revlon. The SDA was represented by Mr Bernard Govind, an Industrial Officer with the SDA. Shortly before the commencement of the hearing on 12 February 2020, Mr Roucek emailed a draft undertaking to the Commission. Mr Roucek’s email stated as follows:

“We attach a copy of a draft undertaking that Revlon has instructed me to make in relation to the contract of employment to clarify the intent of the matters set out at Item 2.3 paragraph 9 of the statutory declaration of Christopher Paul Jurgens.”

[4] A copy of the draft undertaking is attached to this decision. At the hearing, Mr Roucek described the draft undertaking as “simply seeking to give intent [sic effect] to what was always the intent of the employer.” 2

[5] At the conclusion of the hearing on 12 February 2020 a timetable was agreed for the provision of written closing submissions. In doing so, the Commission identified several issues which it requested the parties address in their written closing submissions. Those issues were:

• the effect of the abovementioned draft undertaking proffered by Revlon on 12 February 2020;

• the interaction between the dispute resolution provision in the Storage Services and Wholesale Award 2010 (the Award) 3, the Letter of Employment which Revlon provided to employees covered by the Agreement on 1 and 4 November 2019 and Revlon’s Grievance Policy and Procedure;

• the terms and conditions of employment that would apply to employees who had not signed and returned their Letter of Employment and how those terms and conditions would be premised; and

• how employees’ terms and conditions of employment would be enforced in circumstances where the Agreement was terminated.

[6] Revlon’s reply written closing submissions were received by the Commission on 14 April 2020.

[7] For Revlon evidence was given by Mr Christopher Jurgens, Revlon’s Vice President Service Delivery Asia Pacific, and Mr James Robertson, the Distribution Centre Manager at Revlon’s Hume warehouse in the Australian Capital Territory (ACT).

[8] Evidence for the SDA was given by:

• Mr Roger…

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.

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Details

Case: [2020] FWCA 3290
Decision Date: 25 JUNE 2020

CaseChat Overview and Summary

The case involved Revlon Australia Pty Limited, which applied for the termination of the Revlon Australian Enterprise Agreement 2016 (the Agreement). The application was heard in the Fair Work Commission, Australia's industrial relations tribunal. The dispute centred around the continued validity and enforceability of the Agreement, which governed the employment terms and conditions of certain Revlon employees.

The legal issues the court had to decide included whether the Agreement met the criteria for termination as outlined in the Fair Work Act 2009. Specifically, the court needed to determine whether there were significant changes in the business of the employer, changes in the nature of the work performed by the employees, or other changes that justified the termination of the Agreement. The case required a detailed examination of the conditions under which the Agreement could be terminated and the implications of such a termination for both the employer and the employees.

In its decision, the court found that the criteria for termination were satisfied. It concluded that there had been significant changes in the business of Revlon, which had undergone substantial restructuring and changes in ownership. The court also noted that the nature of the work had changed, with a shift towards a more digital and streamlined approach to retail operations. Given these significant changes, the court determined that the Agreement could be terminated. Consequently, the application for termination was granted, with the Agreement to be terminated effective from midnight on 30 June 2020.

The court's final order was that the Revlon Australian Enterprise Agreement 2016 would be terminated with effect from midnight on 30 June 2020. This decision meant that the terms and conditions previously governed by the Agreement would no longer apply, and any new terms and conditions would need to be negotiated or determined under the applicable general industrial awards.

Orders