[2020] FWCA 3290

FAIR WORK COMMISSION

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 Biron, an employee of Revlon and an SDA workplace delegate;

• Mr Alex Velickovic, an Organiser with the New South Wales Branch of the SDA; and

• Mr John-Paul Sialafau, another Organiser with the New South Wales Branch of the SDA.

[9] For the reasons set out below and having taken into account all the circumstances, I am satisfied that it is not the contrary to the public interest and that it is appropriate to terminate the Agreement. Termination of the Agreement will take effect from midnight (i.e. after 11:59pm) on 30 June 2020. An Order to that effect will be issued in conjunction with this decision.

Background

[10] As noted above the Agreement passed its nominal expiry date on 6 June 2018. Despite approaches from the SDA, Revlon has not agreed to bargain for a replacement agreement and has made it clear that it does not wish to do so.

[11] In light of Revlon’s application to terminate the Agreement, on 11 November 2019 the Commission wrote in the following terms to Mr Jurgens, Revlon’s legal representative and the NSW Branch of the SDA regarding Revlon’s application:

“On 4 November 2019 Revlon Australia Pty Limited made an application to the Fair Work Commission pursuant to s.225 of the Fair Work Act 2009 to terminate the SDA-Revlon Australia Enterprise Agreement 2016 (the Agreement). A copy of the application and supporting documentation is included with this letter.

In deciding whether to terminate the Agreement, the Commission is required to consider the views of the employee organisation and any employees covered by the Agreement.

DIRECTIONS

The following directions are issued:

1. This Letter and Directions are to be made available to any employee of Revlon Australia Pty Limited who is covered by the Agreement by no later than close of business on Tuesday, 12 November 2019.

2. Any party intending to provide their views on the order sought may do so by providing a written statement to chambers ([email protected]) by no later than close of business on Friday, 15 November 2019.

3. If any party wishes to be heard, they must advise chambers by email, by no later than close of business on Friday, 15 November 2019.” (Emphasis as per original)

[12] The SDA emailed the Commission on 14 November 2019 advising among other things that it opposed the application and that it wished to be heard in the matter. Mr Biron emailed the Commission on 15 November 2019 advising that he opposed termination of the Agreement. Mr Biron was the only employee to respond to the Commission’s invitation.

[13] The application was the subject of a telephone mention and/or directions hearing on 4 December 2019 with Directions issued on 5 December 2019.

The Statutory framework

[14] Subdivision D of Part 2-4 of the Act deals with the termination of agreements after their nominal expiry date. Subdivision D provides as follows:

“Subdivision D—Termination of enterprise agreements after nominal expiry date

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 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

The Applicant’s case

[15] Revlon submitted that there were no parties who would be disproportionately worse off were the Commission to make an order terminating the Agreement, positing that the decision in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd (Aurizon) 4 made it clear that the termination of an enterprise agreement will almost always cause an alteration of terms and conditions of employment.5 Revlon further submitted that it was clear that the logical effect of the termination of an enterprise agreement was that some collective terms would no longer be applicable were employees to be employed pursuant to individual contracts.

[16] In response to the SDA’s contention that Revlon’s intent in seeking to have the Agreement terminated was to excise the union from the workplace, Revlon submitted that the contention was not sustainable given the operation of the Act, in particular the object of the Act and other provisions which preserve the SDA’s entitlement to represent the industrial interests of its members. Revlon further submitted that if the argument was accepted that an agreement cannot be terminated because the agreement’s dispute settlement procedure was not maintained then there would be little if no scope to terminate an agreement under s.226 of the Act.

[17] Revlon also contended that it was not possible to include as part of its draft undertaking to individual employees the collective terms of the Agreement.

[18] As to the requirements of the Act, Revlon submitted among other things that:

• it was entitled to make an application under s.225 of the Act as the Agreement had passed its nominal expiry date and it was an employer covered by the Agreement;

• the public interest referred to in s.226(a) of the Act was reference to matters that might affect the public as a whole such as the achievement of the objects of the Act, employment levels, inflation and the maintenance of proper industrial standards 6;

• the notion of the public interest was distinct in nature from the interests of the parties 7;

• termination of the Agreement would not be contrary to the public interest for several reasons including that:

it had given an undertaking to employees that termination of the Agreement would not result in any loss of jobs,

the terms and conditions in the Agreement would be maintained in contracts of employment which would not affect employees’ overall terms and conditions of employment,

termination of the Agreement would not infringe upon freedom of association, and

termination of the Agreement would not preclude an industrial party from utilising the provisions of the Act to commence bargaining or compel it to commence bargaining for an agreement in the future;

• it supported termination of the Agreement because:

it did not believe the Agreement provided sufficient benefit to its operations when weighed against the burden of the requirements of bargaining, reaching agreement with employees and attempting to have an agreement approved;

it wished to extend additional benefits (i.e. the “New Global Benefits” 8) to employees in a uniform manner without having to bargain with employees and was concerned that the framework for bargaining would result in difficulty in achieving that objective,

it had provided a draft undertaking which made it clear that if the Agreement was terminated and an employee had signed and returned a Letter of Employment then their terms and conditions would not reduce, and

the draft undertaking sought to make it clear that it did not extend to clauses in the Agreement that did not provide a term or condition of employment as between it and an employee, adding that the Agreement provisions relating to disciplinary and grievance procedures and posting of the Agreement were therefore not part of its draft undertaking, were not matters it will include in the Letters of Employment and were matters contained either in the Award or its existing policies;

• employees were overwhelmingly in favour of terminating the Agreement with only two of 34 employees not having signed the Letters of Employment, adding that one of those two employees had indicated that they would execute the Letter of Employment were the Agreement to be terminated by the Commission;

• while nine employees had executed letters stating that they no longer supported termination of the Agreement, those letters were inter alia in identical terms, had been prepared by Mr Govind and did not describe the specific concerns that were held by the employees;

• at its highest the SDA had provided direct evidence of one employee, Mr Biron, regarding his views as to the likely effect of termination of the Agreement on employees;

• there was no evidence before the Commission that employees were intimidated or confused by the application or by signing the Letter of Employment;

• given the limitations in the evidence of Messrs Velickovic, Sialafau and Biron, it was not safe for the Commission to place too much, if any, weight on the SDA’s evidence regarding the views of employees;

• there was no evidence of a probative value to substantiate Mr Biron’s assertion that employees were either misled or confused or intimidated by Mr Robertson;

• there was no direct evidence before the Commission as to the reasons why employees executed their Letter of Employment;

• based on the material before the Commission it was only Mr Biron and the SDA that opposed termination of the Agreement;

• the evidence of Messrs Jurgens and Robertson was that Revlon would inter alia not deny employees the right to be represented by the SDA, not deny the SDA the right to post union notices on noticeboards, would continue to permit an employee to attend trade union training and would continue to permit union meetings on site;

• the SDA had provided no cogent evidence to support its contention that employees had signed and returned their Letter of Employment to Mr Robertson without understanding what they were agreeing to and out of confusion, concern or fear of the consequences of not doing so;

• while it did not currently wish to bargain for an agreement, termination of the Agreement did not preclude bargaining in future; and

• each element of the object of the Act had equal standing.

[19] With regard to the issues which the Commission asked the parties to address in their written closing submissions, Revlon submitted that:

• if the Agreement were to be terminated it would make a further offer to any employee that had not previously executed their Letter of Employment, adding that it would not penalise any employee who did not previously execute the document and that the second offer would enable it to give full legal effect to the undertaking it made to employees;

• an employee who had elected not to sign the Letter of Employment would have their employment regulated by the undertaking given to employees, underpinned by the Award and their existing contract of employment;

• if an employee did not sign their Letter of Employment and considered that they had not received the benefit of a term and condition relating to their employment they may access the dispute resolution procedure in the Award if the matter related to a provision that was regulated by the National Employment Standards (NES) or the Award or, if the matter related to another term, the employee may raise the matter in accordance with its Grievance Policy and Procedure;

• if the employee was not satisfied with the outcome under its Grievance Policy and Procedure in respect of their grievance, they could raise a complaint with the Fair Work Ombudsman and/or seek the SDA’s assistance (if they were a member) and/or approach a court;

• its draft undertaking sought to make it clear that:

if a term of the Letter of Employment was more generous than a corresponding term in the Agreement, then the Letter of Employment would apply,

if an employee would be entitled to more notice on termination under the Agreement than they would be under the Letter of Employment, then the appropriate Agreement clause would be regarded as a term of the Letter of Employment between it and that employee, and

if a clause in the Agreement provided a term or condition for an employee who had returned a signed Letter of Employment and that term or condition was not provided for in the Letter of Employment, the Agreement clause would be regarded as a term of the Letter of Employment between it and that employee;

• the draft undertaking made it clear that it did not extend to clauses in the Agreement that did not provide a term or condition of employment, adding that as a result those clauses in the Agreement concerning co-operation of the parties and consultation (clause 5), labour hire/agency staff (clause 7.5), disciplinary and grievance procedures (clauses 31 and 32 respectively), posting the Agreement (clause 35) and union matters (clause 37) were not part of the undertaking; and

• it could not undertake to preserve the grievance and disputes procedure in the Agreement in its Letters of Employment.

[20] In its written closing submissions in reply, Revlon disputed aspects of the SDA’s closing submissions and among other things also:

• contended that the Commission must terminate the Agreement because it could be satisfied that it was not contrary to the public interest to do so and because it could consider it appropriate to do so taking into account all the circumstances, including both its views and the views of employees;

• rejected any suggestion that it had misled employees regarding both the effect of terminating the Agreement and the undertaking it gave to employees on 1 November 2019;

• disputed that the fact that it did not wish to bargain for a new agreement was a relevant matter for the purposes of s.226(a) of the Act;

• reiterated its view that were the Agreement to be terminated any collective terms in the Agreement could not continue in an individual common law contract;

• rejected the SDA’s contention that there was no utility in granting the application;

• stated that the purpose of its draft undertaking was to give effect to its 1 November 2019 undertaking to employees; and

• submitted that the material before the Commission provided a sufficient basis for the Commission to terminate the Agreement.

[21] Mr Jurgens’ Form F24C – Statutory declaration in support of termination of an enterprise agreement 9 stated, among other things, that:

• on 1 November 2019 Revlon gave notice to all employees at work that day at its ACT warehouse of its intention to apply to the Commission to terminate the Agreement and at the same time gave employees an undertaking that they would suffer no reduction to their terms and conditions of employment if the Agreement were to be terminated;

• termination of the Agreement would have no detrimental impact on the number of employees or positions for employees at Revlon’s ACT warehouse, adding that Revlon would not reduce the number of positions, total hours of work at the warehouse overall or for any particular employee as a result of termination of the Agreement;

• for a period of at least 12 months after the date the Agreement was terminated, any offer of employment to a new employee for a role at Revlon’s ACT warehouse would be on the same terms and conditions as those offered to employees on 1 November 2019 (with any appropriate adjustment for the classification and rate of pay); and

• termination of the Agreement would therefore not result in a reduction of take home pay or of overall employment entitlements of those employees currently covered by the Agreement.

[22] Mr Jurgens also set out in his statutory declaration what Mr Robertson informed him he had told employees at the meetings of 1 and 4 November 2019. Beyond that, Mr Jurgens stated that Revlon was not satisfied that the Agreement provided sufficient benefit to its operations when weighed against the burden of the requirements of bargaining, reaching agreement and seeking to have the agreement approved.

[23] Under cross examination Mr Jurgens was questioned extensively about those aspects of the Agreement which were not reflected in the Letters of Employment and the undertaking proffered by Revlon to employees on 1 November 2019. However, much of his evidence in that regard was overtaken by the draft undertaking provided by Revlon on 12 February 2020.

[24] Key aspects of Mr Jurgens’ oral evidence included that:

• he maintained that employees would suffer no reduction in their terms of employment by signing the Letters of Employment;

• he agreed that there were a number of provisions in the Agreement that were not included in or preserved by the Letters of Employment given to employees;

• employees were told on 1 November 2019 that Revlon would honour all the terms and conditions in the Agreement as opposed to all those terms and conditions being reflected in their Letter of Employment, acknowledging that the Letters of Employment given to employees did not specifically state that;

• given that the Letters of Employment did not include or preserve a number of matters that were contained in the Agreement, his Form 24C statutory declaration was inadvertently or unintentionally inaccurate when it stated that “no employee would experience a deterioration of employment security or their terms and conditions of employment if the EA is terminated” 10;

• the various employment benefits which were not currently provided for in the Agreement and which Revlon proposed to extend to employees following termination of the Agreement 11 could all be delivered administratively;

• he disagreed that if the Agreement were terminated there would be an incentive for Revlon to deploy labour hire employees at Award rates across the warehouse as opposed to hiring workers on existing terms;

• he agreed it was entirely possible to set matters within policy without having to bargain with the SDA for an enterprise agreement;

• if employees signed their Letter of Employment, they were indicating they were happy with the terms of the Letter;

• Revlon would apply the terms and conditions reflected in the Letters of Employment to those employees who do not sign their Letter, later adding that Revlon had made a guarantee to employees irrespective of whether they signed the Letter of Employment;

• the Agreement in its current form was not problematic from the business’ perspective;

• Revlon’s desire to work more closely with its employees was not code for it excising the SDA from the site;

• the Letters of Employment given to employees did not state that there would be a wage increase but rather stated that there would be a review each year 12;

• Revlon had for a significant period of time simply used labour hire during the Christmas period;

• the “New Global Benefits” were not set by anyone in Australia, adding that he was not aware of any plan to change those benefits and that Revlon’s preferred method for providing those benefits was by way of contract;

• no employees had come to him with any questions through the process of discussing the possible termination of the Agreement and providing them with their Letter of Employment to consider;

• Revlon wished to terminate the Agreement because the process of negotiating a replacement Agreement was too long; and

• he was not aware of any plan by Revlon to stop recognising the SDA as the union on site, adding that Revlon would continue to allow union meetings to occur on site as per clause 37.3 of the Agreement and would continue to allow SDA delegates to post notices on noticeboards.

[25] Mr Robertson filed two witness statements. 13 In his first statement Mr Robertson set out the chronology of events from 1 to 12 November 2019. In his second witness statement Mr Robertson outlined developments since his initial statement. Specifically, Mr Robertson deposed that he had received two further executed Letters of Employment from employees bringing the number of executed letters received to 33 from 35 employees. Mr Robertson also deposed that he received three complaints from employees following the right of entry exercised by Messrs Velickovic and Sialafau on 15 November 2019. Beyond that, Mr Robertson responded to the SDA’s witness statements and submissions. Key aspects of Mr Robertson’s statement in that regard included that:

• there was no basis for Mr Biron to assert that employees had returned the Letters of Employment indicating support for termination of the Agreement because they felt intimidated or confused, adding that he had not intimidated any employees into signing their Letter;

• he was not aware of any intention by Revlon to reduce wages to the Award rate, adding that this would be a breach of the terms of the Letter of Employment;

• while the grievance and disputes procedure set out in the Agreement was not part of the Letter of Employment, employees were encouraged to raise matters with their supervisor, their union or a representative from Revlon’s Human Resources area, noting that employees would continue to have the ability to raise disputes under the Award and adding that Revlon has a Grievance Policy and Procedure which would apply should the Agreement be terminated;

• union members would continue to have the benefits of the SDA’s assistance and support in relation to anything related to their employment;

• employees would continue to be protected by work, health and safety laws;

• there was no current intention to increase the use of labour hire staff;

• as far as he was aware, should the Agreement be terminated, Revlon would not inter alia deny employees the right to be represented by the SDA in relation to a dispute raised under the Award, would not deny the SDA the right to post union notices on noticeboards as per the Agreement and would continue to permit an employee to attend trade union training;

• Revlon does not wish to bargain for a new enterprise agreement with the SDA and has not acted in bad faith; and

• the “Union News” flyers of 4 and 14 November 2019 both contained a number of statements which he believed to be misleading, e.g. the suggestion that employees would receive the Award rate of pay as opposed to their current rate of pay if the Agreement were to be terminated.

[26] As with Mr Jurgens, Mr Robertson was questioned extensively about those elements of the Agreement which were not reflected in the Letters of Employment and the undertaking previously proffered by Revlon to employees. As noted above, much of that evidence was overtaken by the draft undertaking which Revlon provided on 12 February 2020.

[27] Key aspects of Mr Robertson’s oral evidence included that:

• at the meetings with employees on 1 and 4 November 2019 he gave an undertaking to employees that they would suffer no reduction in their terms and conditions of employment were the Agreement to be terminated;

• there was no reference to the Commission in Revlon’s Grievance Policy and Procedure 14, adding that it was his belief that legislation provided that employees had the capacity to take a matter in dispute under the Policy to the Commission;

• he disagreed that Revlon’s policies were unenforceable by virtue of clause 22.3 of the Letter of Employment which stated that the “policies of Revlon do not form part of this Letter and do not impose any contractual obligations on Revlon” 15, adding in response to a question from the Commission that he believed the term meant that “with agreement and consultation that policies can and could change with – in any company, and perhaps new policies coming in”;16

• while the Letter of Employment might be worded differently to the Agreement, when considered with Revlon’s policies and applicable legislation he believed that should the Agreement be terminated there would be no reduction in employees’ terms;

• consistent with his memorandum to employees at warehousedated 4 November 2019 17, his belief was that employees’ conditions would not change except beneficially were the Agreement to be terminated;

• were the Agreement to be terminated, provisions relating to the purchase of additional annual leave, flu shots and salary sacrifice for superannuation would be dealt in policy as opposed to the Letter of Employment;

• clause 37 – Union Matters of the Agreement was not reflected in the Letters of Employment, adding that he believed an employee would under legislation be able to enlist the support of a workplace delegate or work colleague when raising an issue under the Letter of Employment;

• he did not know what the next step would be if a matter remained in dispute once an issue had been considered by Human Resources in accordance with Revlon’s Grievance Policy and Procedure;

• the description in his first witness statement of his discussion with Mr Biron on 5 November 2019 was a true record of events, adding that it was true that he had received reports that Mr Biron had been telling non-union members to join the SDA or risk being fired and that three people had told him this;

• he recalled that at the meeting with employees on 8 November 2019 a question was asked as to what would happen if an employee did not sign the Letter of Employment, with his response being that Revlon would stand by the Letter offered to such an individual if the Agreement were to be terminated;

• he agreed that the practical effect of his response was that if an employee did not sign the Letter of Employment its terms would still apply to them in circumstances where the Agreement was terminated;

• he did not believe that his response created any confusion among employees as no one had subsequently asked any further questions regarding his response;

• he did not feel that employees felt compelled or intimidated to return their Letter of Employment to him;

• were the Agreement to be terminated, Revlon would 12 months after that occurred have the capacity to employ employees on Award rates of pay, adding that his belief was that Revlon did not intend to do so;

• were the Agreement to be terminated, labour hire employees would be able to be deployed through the warehouse and be paid the Award rate of pay;

• employees had not been misled in relation to the additional benefits Revlon proposed to provide employees were the Agreement to be terminated;

• it was his belief there would be no objection to an employee being represented by the SDA delegate in a dispute regarding their Letter of Employment;

• he denied that he and others had discouraged employees from joining the SDA;

• the Award underpins the Letters of Employment;

• his understanding was that under the Agreement employees at the warehouse were entitled to $250 worth of Revlon goods each year while other Revlon employees not covered by the Agreement were entitled to $500 worth of goods each year, though he acknowledged that Mr Biron received the $500 benefit in 2019 18; and

• he would continue to recognise the SDA as the union entitled to represent the industrial interests of employees on site, continue to recognise the SDA’s ability to exercise right of entry under the Act, continue to give reasonable consideration to requests for paid time union meetings to discuss Revlon workplace issues and would continue to permit the Secretary or any other official of the SDA to post notices at the workplace.

The SDA’s case

[28] The SDA’s overall submission was that the Commission could not be satisfied on the evidence that it was not contrary to the public interest to terminate the Agreement and could not consider it appropriate to terminate the Agreement taking into account all the circumstances. On the latter aspect, the SDA submitted that this was because:

• the views of employees covered by the Agreement were at best unclear, positing inter alia that employees who signed the Letter of Employment misapprehended the consequences of doing so;

• it did not support termination of the Agreement, not the least because it would lose rights and capacities to represent its members were termination to occur;

• Revlon’s reasons for seeking to terminate the Agreement were unconvincing and illogical; and

• if the Agreement was to be terminated there would be a significant detraction from existing terms and conditions of employment, with no prospect of bargaining being available to restore such terms and conditions.

[29] Other key aspects of the SDA’s submissions included that:

• Revlon had complied with s.225 of the Act;

• it was difficult to see how an employer’s wish not to bargain for an agreement was justification for an application to terminate an extant agreement, adding that this would at best be a neutral consideration in terms of the public interest;

• granting Revlon’s application would mean that its employees will never have access to terms and conditions of employment providing for matters such as arbitration of disputes, union rights or regulation of labour hire;

• as such, the Commission could not be satisfied that it was not contrary to the public interest to terminate the Agreement;

• termination of the Agreement would make it less likely that Revlon will engage in bargaining;

• it was impossible to ascertain the extent of the draft undertaking provided by Revlon, adding that this brought an unacceptable level of uncertainty to the proposed contractual relationships between Revlon and its employees were the Agreement to be terminated;

• this uncertainty was a relevant consideration in the context of s.226(b)(ii) of the Act;

• there was nothing to prevent Revlon from entering into the Letter of Employment with employees irrespective of whether the Agreement was terminated;

• there was nothing preventing Revlon implementing improved policies without terminating the Agreement;

• given Mr Jurgens’ evidence that the continuing operation of the Agreement was not problematic for Revlon, there was no utility in granting the application;

• Revlon had made misrepresentations to its workforce about their existing workplace rights and the effect of their exercise of their workplace rights;

• it was simply not the case that the terms and conditions of employment of the employees covered by the Agreement would not change except beneficially if the Agreement were to be terminated;

• the Commission could infer that in all the circumstances in this matter Revlon intentionally misled employees to whom the Agreement applies or was at least reckless as to whether the employees were misled, adding that it considered that in doing so Revlon had contravened s.345 of the Act;

• clause 4.4 of the Letters of Employment provided that annual wage reviews would be conducted but did not guarantee a wage increase, adding that this was inconsistent with Mr Robertson’s Memo to employees 19 which stated “Yes, you will receive pay increases”;

• clause 12.1 of the Letters of Employment which provided for the “cash out of personal leave” contravened s.100 of the Act;

• Revlon chose to present its employees with an invidious choice, i.e. terminate the Agreement or miss out on what was represented to them as some additional benefits; and

• in the absence of contradiction, Mr Biron’s oral evidence that 20-25 employees covered by the Agreement did not support termination of the Agreement despite those employees having signed the Letter of Employment was a matter which should weigh heavily on the Commission’s assessment of the views of employees under s.226(b)(i) of the Act.

[30] As to the issues which the Commission asked the parties to address in their written closing submissions, the SDA submitted that:

• should Revlon’s Letter of Employment not be accepted by the two employees yet to sign the document it remained at large under what terms those employees would be engaged or whether those employees would be taken to have accepted their varied contracts by their conduct;

• either way, if the Agreement was terminated all employees presently covered by the Agreement would have as their statutory enforceable minimum standards the NES and the Award rather than the superior terms and conditions set out in the Agreement;

• as to Revlon’s contention that those employees who do not sign the Letter of Employment would have their terms and conditions regulated by the undertaking made to employees on 1 November 2019, any such undertaking would at most only have force as a common law contract;

• should the Agreement be terminated, employees would need to go to the time and expense of a court hearing to obtain a determination in respect of their contract, adding that it was risible to submit that this was a realistic option for a Revlon employee;

• Revlon conceded that the undertakings it had made rose no higher than contractual enforceability;

• employees who signed the Letters of Employment were not made aware of the carve outs reflected in Revlon’s draft undertaking of 12 February 2020;

• Revlon’s undertakings did not answer the detriment to employees covered by the Agreement or to the SDA should the Agreement be terminated, nor do they provide an answer to the matters which the Commission is required to consider pursuant to s.226(b) of the Act; and

• Revlon had made it clear that it refuses to incorporate in the Letters of Employment a dispute settlement procedure that provides for arbitration over the matters dealt with in clauses 31 and 32 of the Agreement (i.e. the Agreement’s disciplinary and grievance and disputes procedures), adding that the dispute resolution process in the Award does not provide for arbitration as a matter of right and only applies to matters that arise under the Award or the NES which was narrower in scope than the Agreement’s grievance and disputes provision.

[31] The SDA in its submissions referred to several authorities, including AWX Pty Ltd trading as AWX 20; Esso Australia Pty Ltd T/A Esso v The Australian Workers’ Union; the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (Esso)21; Phillip Arcidiacono T/A Rose Cleaning Service and Phillips Cleaning Service22; Construction, Forestry, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd23; Kellogg Brown & Root Pty Ltd and Others v Esso Australia Pty Ltd24; and Tahmoor Coal Pty Ltd25.

[32] Among other things, Mr Biron deposed in his witness statement 26 that:

• he attended a staff meeting on 1 November 2019 at which Mr Robertson informed employees that an application to terminate the Agreement would shortly be lodged with the Commission and read through the Letter of Employment which was subsequently given to employees at the end of the meeting;

• no questions were asked at the meeting, with employees asked by Mr Robertson to sign and return their Letter of Employment by 8 November 2019;

• Mr Robertson asked to speak to him on 5 November 2019, adding that Mr Robertson said to him that he had received reports that he had told non-union members that they had to join the union or risk being fired;

• the conduct attributed to him by Mr Robertson was a complete fabrication;

• at a further staff meeting on 7 November 2019 Mr Robertson said something to the effect that people who did not sign the Letter of Employment would be bound by it were the Agreement to be terminated, adding that this created a lot of confusion at the site;

• he had not signed the Letter of Employment because he disagreed with termination of the Agreement;

• he strongly objected to termination of the Agreement, adding that he was representative of the views of many employees including the at least 13 SDA members at the workplace;

• he believed that other employees had not come forward to oppose Revlon’s application because they felt intimidated and that many employees had signed the Letter of Employment because they were confused;

• he believed the likely effect of termination of the Agreement on employees to include prospective wages being reduced to the Award rate, employees no longer being able to access the grievance and disciplinary procedures provided for in the Agreement, terms and conditions being undermined and an increase in the use of labour hire employees;

• termination of the Agreement would result in the removal of union provisions in the Agreement and undermine freedom of association; and

• he understood the SDA had been trying to commence bargaining for a replacement agreement.

[33] Key aspects of Mr Biron’s oral evidence included that:

• he did not consider the “Union News” flyers distributed to employees by SDA officials on 5 and 15 November 2019 to be misleading;

• Messrs Sialafau and Velickovic were very professional when they visited the workplace on 15 November 2019, adding he did not find them to be intimidating or manipulating to anybody;

• his understanding was that Revlon’s disciplinary procedure 27 was not enforceable on the basis that the procedure stopped at “HR” as there was nothing in the procedure to say a disciplinary matter could be taken to the Commission or to the SDA;

• he disagreed that an SDA member who had been dismissed from their employment had the right under the Act to be represented by the SDA in proceedings in the Commission regarding their dismissal;

• while he accepted that employees had been told by Revlon that if the Agreement was terminated they would receive the same rate of pay as under the Agreement, he did not accept that that would happen because over time Award wages would increase to the rate of pay he was receiving under the Agreement;

• the rate of pay specified in the Letter of Employment he had been given 28 was his existing rate of pay under the Agreement;

• his interpretation of the statement in the “Union News” flyer of 4 November 2019 that “[i]f the Agreement is terminated, all employees will be underpinned by the Storage Services Award. This means that the Company will employ employees on the Award rate not the Agreement rate” 29 (underlining as per original) was that he would continue to be employed on his current rate of pay but any future employees would be employed on the Award;

• despite the statement in the abovementioned flyer that employees would not have access to the Commission if the Agreement were terminated, he accepted that there would be access to the Commission;

• there were no interactions between himself and other employees which directly evidenced confusion as what terms and conditions would apply if the Agreement was terminated and an employee had not signed their Letter of Employment;

• only two of Revlon’s 34 employees had not signed the Letter of Employment, with him being one of those two employees and the other employee not signing because they wanted to await the outcome of the Commission’s determination of Revlon’s application;

• the fact that 33 out of 35 employees (one employee who had signed the contract had since resigned) had signed the Letter of Employment did not indicate there was a lot of support for terminating the Agreement, adding that employees signed the Letter of Employment out of confusion and that there was no evidence from other employees as to a state of confusion;

• some 20-25 employees who had signed the Letter of Employment did not support termination of the Agreement, adding that this was based on people telling him that they did not support termination of the Agreement and acknowledging that his assertion was not supported by any evidence before the Commission;

• there was no evidence of intimidation of employees by Revlon;

• his concern that wage rates would not go anywhere until the Award rates caught up was no different from the current situation where the Agreement did not provide for any increases following its nominal expiry date;

• there was nothing that gave him the impression that Revlon would or would not increase wage rates if the Agreement was to be terminated;

• termination of the Agreement would not affect an employee’s ability to contact the SDA about an issue that they believed was related to their employment;

• he was unable to say why Ms Cooper, Mr Phillips and Ms Chalker raised concerns with Mr Robertson 30 about the conduct of union officials at the workplace on 15 November 2019; and

• Messrs Sialafau and Velickovic did say to employees on 15 November 2019 that they needed 20 signatures on the letter signed by nine employees (see paragraph [36] below).

[34] In his witness statement 31 Mr Velickovic deposed that he visited the workplace on 5 and 15 November 2019 consistent with s.484 of the Act which deals with entry to hold discussions, adding that Mr Joe Bourke, an Organiser with the SDA, also attended on 5 November 2020 while Mr Sialafau also attended on 15 November 2020. On both occasions copies of the “Union News” flyer were provided to members, with those flyers dated 4 and 14 November 2019 respectively and focussed on Revlon’s refusal to negotiate a new enterprise agreement to replace the Agreement. Mr Velickovic further deposed that during the first visit feedback from members was that they had signed the Letter of Employment and that they did not know that they had any option but to do so, while during the second visit nine members signed a letter stating inter alia that they opposed termination of the Agreement.

[35] Mr Velickovic’s oral evidence was that the abovementioned letter signed by nine members on 15 November 2019 was in identical terms and had been prepared by Mr Govind, acknowledging that the letter did not specify the concerns held by the employees. Mr Velickovic disputed that employees were told that they risked losing their jobs if they did not sign the letter, adding that he did not know why a Revlon employee, Ms Raelene Cooper, would have written to Mr Robertson stating that during 15 November 2019 visit the SDA had “kept saying we will loose our jobs, loose pay increases and loose any rights we now have” 32 (spelling as per original). Other key aspects of Mr Velickovic’s oral evidence included that:

• the statement in the “Union News” flyer of 4 November 2019 that “the Company will employ employees on the Award rate not the Agreement rate” 33 (underlining as per original) was not correct in light of the undertaking made by Mr Jurgens and Revlon’s representations in the documents attached to Mr Jurgen’s statutory declaration34;

• were the Agreement to be terminated an employee who wished to raise a matter in relation to the Award or the NES could access the Commission via the Award’s dispute resolution procedure in the Award;

• further, were the Agreement to be terminated, employees could still make an unfair dismissal or general protections application and an employee organisation would still be able to apply to the Commission for a majority support determination, scope order or a good faith bargaining order;

• he accepted that Revlon had given an undertaking that no employee’s hours of work would be reduced and that total hours of work overall would not be reduced;

• he believed that over time existing conditions will be eroded were the Agreement to be terminated; and

• he disagreed that the claim in the “Union News” flyer of 4 November 2019 that employees will have no job security was not correct.

[36] Mr Sialafau deposed in his witness statement that he visited the workplace with Mr Velickovic on 15 November 2019 and that during that visit nine members signed a letter stating inter alia that they opposed termination of the Agreement. Mr Sialafau provided two copies of his witness statement, one with redacted copies of the abovementioned letters attached 35 and the other with unredacted copies of the letters attached.36 The attached letters read as follows:

“I am an employee of Revlon Australia Pty Limited covered by the SDA-Revlon Enterprise Agreement 2016.

I oppose termination of the Agreement as it will have a detrimental impact on the certainty and nature of my working conditions.

I appoint the Shop, Distributive and Allied Employees’ Association to represent me in this matter. I submit my views under the auspices of section 594 of the Act and ask that my name be withheld from my employer.” 37

[37] At the hearing, Mr Sialafau attested among other things that:

• when he attended the workplace on 15 November 2019, he had copies of the abovementioned letter with him;

• he did not tell employees to sign the letter but rather they were invited/asked to do so;

• he did say to employees that the SDA needed about 20 employees to sign the letter so that it could seek a majority support determination so that it could oppose termination of the Agreement;

• he did not tell employees that they risked losing their job if they did not sign the letter;

• he rejected Ms Cooper’s assertion (see paragraph [35] above) that employees were told they would lose their jobs, pay increases and any rights they now have;

• he rejected the assertion that employees were pressured to sign the letter;

• he rejected what Ms Chalker and Mr Phillips (two other employees who had also written to Mr Robertson about the SDA’s visit to the workplace on 15 November 2019 38) had put in their correspondence to Mr Robertson; and

• he did not approach Ms Chalker or Mr Phillips on 15 November 2019.

Consideration of the issues

[38] It was not disputed that Revlon, as the employer covered by the Agreement, was able to make an application under s.225 of the Act.

[39] Against that background, I turn to s.226 of the Act which sets out when the Commission must approve the termination of an enterprise agreement after its nominal expiry date. In doing so, I note that that the Commission must be satisfied that it is not contrary to the public interest to do so and consider that it is appropriate to terminate the Agreement taking into account all the circumstances. I deal with each of the considerations in s.226 below.

(i) The Commission is satisfied that it is not contrary to the public interest to do so – s.226(a)

[40] The Full Bench in Aurizon considered the issue of public interest in the context of s.226(a) of the Act, making the following observations:

“[129] Section 226(a) requires a consideration of whether termination of the agreements is not contrary to the public interest. It seems to us that a consideration of the public interest will involve something that is distinct from the interests of the persons and bodies covered by the agreements. This distinction seems to be reflected in the structure of s. 226. The question of how the public interest is to be assessed was considered by a Full Bench of the Australian Industrial Relations Commission in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000. The decision in Kellogg Brown concerned an application to terminate a certified agreement pursuant to s. 170MH of the WR Act. The Full Bench observed:

"The absence of any reference to the interests of the negotiating parties in s.170MH(3) is significant. It follows that the views of persons bound by the agreement may be relevant to the exercise of the discretion if they shed light upon the effect of termination on the public interest, but they should not be given any independent weight. To do so would be to import into the application of the section something which on its proper construction it does not include. The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them."” (Citations not included, underlining added)

[41] As previously noted, Revlon contended that termination of the Agreement would not be contrary to the public interest for several reasons including that it had given an undertaking to employees that termination of the Agreement would not result in any loss of jobs, the terms and conditions in the Agreement would be maintained in the Letters of Employment which would not affect employees’ overall terms and conditions of employment, termination of the Agreement would not infringe upon freedom of association and termination of the Agreement would not preclude an industrial party from utilising the provisions of the Act to either commence bargaining or compel it to commence bargaining for an agreement in the future.

[42] On the other hand, the SDA submitted among other things that granting Revlon’s application would mean that the employees covered by the Agreement would never have access to terms and conditions of employment providing for matters such as arbitration of disputes, union rights or regulation of labour hire and that termination of the Agreement would make it less likely that Revlon would engage in bargaining. The SDA further submitted that as a result the Commission could not be satisfied that it was not contrary to the public interest to terminate the Agreement.

[43] Considering the public interest as described by the Full Bench in Aurizon against the circumstances in this case, I note firstly that termination of the Agreement in this case would see employees’ terms and conditions underpinned by the Award and the NES, supplemented by the Letters of Employment where executed and Revlon’s draft undertaking. One of the means by which the object of the Act is to be achieved is by “ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders” [s.3(b) of the Act]. In other words, termination of the Agreement would not undermine the maintenance of proper industrial standards as contemplated by the object of the Act. While employees will no longer have unilateral access to arbitration as per the Agreement’s grievance and disputes procedure should the Agreement be terminated, they will have access to the Award’s disputes resolution provision in respect of a dispute about a matter arising under the Award or the NES. The Award provision provides for consent arbitration. In respect of disputes relating to their Letter of Employment, employees will have access to Revlon’s Grievance Policy and Procedure and/or the courts.

[44] As to the SDA’s contention regarding bargaining, I note that in the two years since the Agreement passed its nominal expiry date Revlon has steadfastly indicated that it does not wish to bargain for a replacement agreement. In those circumstances, it is improbable in my view that termination of the Agreement will make it less likely that Revlon will engage in bargaining. Further, it is important to note that termination of the Agreement does not preclude Revlon at some future point in time agreeing to bargain or alternatively the SDA utilising the provisions of the Act to compel Revlon to bargain for an agreement by seeking a majority support determination.

[45] Beyond that, there is no material before the Commission indicating that termination of the Agreement would impact on employment levels or inflation in a way that would enliven the public interest.

[46] For all these reasons, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

(ii) The views of the employees, each employer, and each employee organisation covered by the agreement – s.226(b)(i)

[47] It is clear that Revlon supports termination of the Agreement. Nevertheless, I would observe that Revlon’s application is somewhat odd in circumstances where Mr Jurgens’ evidence was that the Agreement in its current form was not problematic from Revlon’s perspective. More specifically, Revlon’s submission that it supported termination of the Agreement because it did not believe the Agreement provided sufficient benefit to its operations when weighed against the burden of the requirements of bargaining, reaching agreement with employees and attempting to have an agreement approved is in my view not so much an argument as to why the Agreement should be terminated but rather an explanation as to why Revlon does not wish to negotiate a replacement agreement.

[48] As to the views of employees, the material before the Commission indicates that 32 of 34 employees have signed and returned the Letter of Employment, that Mr Biron strongly objects to termination of the Agreement and that nine employees (with Mr Biron being one of those nine employees) have signed template letters stating inter alia that they oppose termination of the Agreement (see paragraph [36] above). With regard to the Letters of Employment, I note that clause 1.3 of the Letter of Employment provides as follows:

“By signing and returning this Letter you are indicating that you support the application to terminate the Agreement and that you are happy to be employed pursuant to the terms of the Letter and to the extent that a matter is not covered in this Letter the Award. The Award does not form part of this Letter.” 39

[49] As to the nine employees who signed the abovementioned template letter stating their opposition to termination of the Agreement, I note that eight of those employees must have also signed and returned their Letter or Employment. More importantly, I also note that, other than Mr Biron, none of those nine employees was called to give evidence in the matter. In those circumstances, the Commission is none the wiser as to their actual views regarding termination of the Agreement and their reasons for opposing termination of the Agreement, assuming they oppose termination of the Agreement. Even if all nine are taken to oppose termination of the Agreement, based on the number of employees who have returned signed Letters of Employment, 24 of 34 employees (or about 70% of employees) support termination of the Agreement (with one employee awaiting determination of Revlon’s application before deciding whether to execute their Letter of Employment).

[50] In his oral evidence, Mr Biron attested that some 20-25 employees who had signed the Letter of Employment did not support termination of the Agreement. However, Mr Biron agreed that this assertion was not supported by any evidence before the Commission. In the absence of any probative evidence to support Mr Biron’s assertion, no weight can be attached to it.

[51] I note also that Mr Biron was the only employee to respond to the Commission’s direction of 11 December 2019 (see paragraph [11] above), raising further questions as the actual views of the other eight employees who signed the abovementioned template letter stating that they opposed termination of the Agreement.

[52] As also noted above, the SDA in its submissions posited that employees who signed the Letter of Employment misapprehended the consequences of doing so. Similarly, Mr Biron’s evidence was that employees signed the Letter of Employment out of confusion. However, neither of these contentions was corroborated by other evidence. In that regard, I would indicate that I consider Mr Biron’s evidence to at times have been coloured by his strong opposition to the Agreement being terminated. As such, I have concerns about the veracity of aspects of his evidence, particularly as it relates to the views of other employees, with Mr Biron’s evidence in that regard largely uncorroborated.

[53] In summary, the above analysis supports a finding that a significant majority of employees either support termination of the Agreement or at least do not oppose it.

[54] Finally, it is clear from the material before the Commission that the SDA opposes termination of the Agreement, not the least because it would lose rights and capacities to represent its members were termination to occur. This issue is discussed in further detail below in the context of considering the likely effect termination of the Agreement would have on the SDA.

(iii) The circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them – s.226(b)(ii)

[55] I note firstly that Revlon’s application was made in circumstances different to those which existed in several of the authorities referred to by the parties in their respective submissions. For instance, this case does not involve protracted bargaining for a new agreement as was the case in Aurizon and Esso. As such, a decision to terminate the Agreement will not impact the bargaining dynamic in this case because there is no bargaining currently on foot.

[56] Revlon in its submissions largely focussed on the impact that termination of the Agreement would have on employees covered by the Agreement and said very little about the effect that termination would have on it. Revlon’s arguments in support of termination of the Agreement were not predicated on a contention that the Agreement was impeding productivity. To the contrary, Mr Jurgens’ evidence was that the Agreement in its current form was not problematic from Revlon’s perspective. Against that background, the conclusion that I draw from the material before the Commission is that termination of the Agreement is unlikely to have much of an effect on Revlon. As such, it is a neutral consideration in deciding whether it is appropriate to terminate the Agreement.

[57] As to the effect of termination would have on employees, the key terms and conditions of employees would by and large continue by virtue of Revlon’s draft undertaking of 12 February 2020. However, as is made clear in the draft undertaking, the following Agreement clauses would no longer apply: clause 5 – Co-operation of the parties and consultation, clause 7.5 – Labour hire/Agency staff, clause 31 – Disciplinary procedure, clause 32 – Grievance and disputes procedure, clause 35 – Posting of Agreement and clause 37 – Union Matters.

[58] A closer look at those provisions (other than clause 37 which is discussed in more detail in respect of the effect of termination of the Agreement on the SDA) and the effect of their loss indicates that:

• Clause 5 incorporates what might be characterised as some “objective” statements as well as provisions relating to consultation regarding major change. As the Letter of Employment does not deal with the latter issue, the relevant Award provision would apply. The Award provision provides for representation in such circumstances. As such, employees will not be disadvantaged by clause 5 no longer operating.

• Clause 7.5 specifies the labour hire/agency staff working in the Over Labelling and Parcels areas will be paid as the casual Award rate for a Storeworker grade 1 (after 12 months) while labour hire/agency staff working in other areas are to be paid at the casual Level 1 rate under the Agreement. The clause does not otherwise deal with the circumstances in which labour hire/agency staff can be engaged, though Mr Jurgens’ evidence was that Revlon had for a significant period of time simply used labour hire during the Christmas period. Given the terms of the clause, I do not consider that employees’ terms and conditions of employment will be adversely impacted, if they are impacted at all, by this provision no longer operating.

• Clause 31 the Agreement provides that where an employee is to be issued with a warning or dismissal that this must occur in the presence of the “employee representative” (a term that is not defined in the Agreement). Revlon’s Disciplinary Guidelines provide that “Employees may have a support person support person or representative with them in any disciplinary or investigation meetings.” 40 As such, employees are unlikely to be disadvantaged by virtue of clause 31 no longer operating

• Clause 32 provides for access to arbitration in circumstances where conciliation does not resolve a dispute about a matter arising under the Agreement or in relation to the NES. As previously noted, should the Agreement be terminated employee’s will have access to the Award’s disputes resolution provision in respect of a dispute about a matter under the Award or NES and in respect of disputes relating to their Letter of Employment, employees will have access to Revlon’s Grievance Policy and Procedure and/or the courts. This may potentially disadvantage employees.

• Clause 35 requires that a copy of the Agreement be posted in a prominent workplace. I note that copies of the Agreement would continue to be available on the Commission’s website even if the Agreement was to be terminated. This is unlikely to result in any real disadvantage to employees.

[59] The above analysis points to the loss of access to unilateral arbitration as the key impact on employees as a result of the above provisions no longer applying if the Agreement were to be terminated.

[60] On the other side of the ledger, termination of the Agreement will see Revlon provide employees with some benefits/conditions not currently provided for in the Agreement, i.e. salary continuance and income protection insurance, 12 weeks paid parental leave and an additional two days annual leave each year to be provided during the summer holiday/Christmas period. Though the weight that can be attached to these benefits is diminished by clause 23 of the Letter of Employment “Revlon reserves the right to vary, rescind or replace the benefits and they … are not enforceable as obligations on Revlon”. 41

[61] On balance, I consider that termination of the Agreement is likely to have minimal effect on employees, with the effect likely to be positive if anything. I have come to that view for two key reasons. First, while reference was made to the Commission dealing a dispute under the grievance and disputes procedure in the predecessor agreement regarding extreme temperatures in the warehouse during the hotter months 42, there is nothing before the Commission regarding a circumstance where the Commission has had to arbitrate a dispute in accordance with grievance and disputes procedure in the Agreement. Second, in respect of the additional benefits provided for in the Letters of Employment, Mr Jurgens’ evidence was that the benefits were not set by anyone in Australia and that he was not aware of any plan to change those benefits. The minimal effect that termination of the Agreement is likely to have on employees in my view is not sufficient to weigh against termination of the Agreement.

[62] As mentioned above, the SDA opposes termination of the Agreement not the least because it believes that it would lose rights and capacities to represent its members were termination to occur. A key consideration in that regard appears to be the fact that clause 37 of the Agreement which deals with Union Matters would no longer apply (Revlon’s draft undertaking of 12 February 2020 makes it clear that the clause will not apply should the Agreement be terminated). By way of background, clause 37 provides as follows:

“37. UNION MATTERS

37.1 Union Recognition

Whilst mindful of the principles of the freedom of association, the Company recognises the legitimate role of the SDA in the representation of employees who work at the site and accordingly all prospective and current employees will be encouraged to join and maintain financial membership of the union. The Company will continue to provide payroll deductions facilities for the remittance of union membership dues to the SDA.

37.2 Site Visits

Subject to the FW Act, an association Organiser appointed by the union will be granted right of entry in order to carry out legitimate union business. The Organiser shall not unduly interfere with the work of the establishment and shall not hinder or obstruct an employee in the performance of work during working time.

The organiser will advise the appropriate officer of the company of his/her presence before entering the work area and if possible, give 48 hours prior notice of their intended visit.

37.3 Union Meetings

The Company will give reasonable consideration to requests for paid time for union meetings to discuss Revlon work place issues. It is required that a fully motivated request be forwarded to management in sufficient time and be approved beforehand. At least one days' notice will be required. Management will give reasons when a request for paid time off is declined. Paid time off for meetings will cease and revert to unpaid time for the full period in the event of a work stoppage or industrial dispute.

37.4 Posting of Notices

An accredited representative of the association bound by this Agreement shall be permitted to post formal union notices signed by the Secretary or other official of the association or the representative posting them. Any notice posted on the board not so signed may be removed by an accredited representative of the association or by the company.

A copy of any such notice(s) will be forwarded to the site manager at the same time.

37.5 Trade Union Training Leave

The Company supports the union in ensuring that appointed union delegates are trained to enable them to carry out their responsibilities as representatives of the union. Accordingly, the company will co-operate with the union at such times as the union conducts or participates in bona-fide union training programs and subject to the following conditions:

37.5.1 That only two delegates should attend at any one time.

37.5.2 That the frequency and duration of such courses is within reasonable limits.

37.5.3 That confirmation of the delegate(s) acceptance onto the course is forwarded to the company by the union.

37.5.4 That union give one month's notice of any such program and that where subject to the needs of the business, the company is unable to release the delegate(s), the company will advise the union accordingly within ten (10) days.

37.5.5 The costs of travel, accommodation and other associated costs incurred shall not be the liability of the company.

37.5.6 Leave granted shall not incur any additional payment to the extent that the course attended coincides with any other period of paid leave pursuant to this Agreement.

37.5.7 Subject to the above conditions, the company will arrange to release the delegate in order to attend such programs without deduction of pay.”

[63] The key elements of the clause appear to concern union recognition, site visits and posting of notices. I note in respect of site visits that the provision operates subject to the Act, while in respect of union meetings the provision only requires Revlon to give “reasonable consideration” to SDA requests for paid time union meetings.

[64] More generally, Mr Jurgens’ evidence was that he was not aware of any plan by Revlon to stop recognising the SDA as the union on site, that Revlon would continue to allow union meetings to occur on site as per clause 37.3 of the Agreement and would continue to allow SDA delegates to post notices on noticeboards. Mr Robertson’s evidence was similar in that he attested that he would continue to recognise the SDA as the union entitled to represent the industrial interests of employees on site, continue to recognise the SDA’s ability to exercise right of entry under the Act, continue to give reasonable consideration to requests for paid time union meetings to discuss Revlon workplace issues and would continue to permit the Secretary or any other official of the SDA to post notices at the workplace. In short, their evidence was that little would change in practical terms, though neither Mr Jurgens nor Mr Robertson made any reference to the continued provision of payroll deduction facilities provided for in clause 37.1 of the Agreement. While I note Messrs Jurgens’ and Robertson’s evidence, were the Agreement to be terminated there would technically be no impediment to Revlon reversing the position expressed by them. However, there is nothing to suggest that that will be the case. Irrespective, the Act’s provisions regarding freedom of association and right of entry would apply as they do now.

[65] Against that background, and drawing on the decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited 43, I would observe that termination of the Agreement will not affect:

• the rights of a Revlon employee to choose whether they wish to join, continue to be or cease to be, a member of the SDA;

• the right of the SDA to access the provisions of the Act in an endeavor to compel Revlon to bargain for a new agreement; or

• the capacity of an officer of the SDA who is a permit holder under the Act to investigate suspected contraventions of the Act or of the terms of the Award or to enter Revlon’s premises for the purposes of holding discussions with employees.

[66] In short, while termination of the Agreement has the potential to have a negative impact on the SDA having regard to the material before the Commission it is more likely that termination of the Agreement will only have minimal effect on the capacity of the SDA to represent its members and or to seek to recruit new members at Revlon. If anything, this weighs against termination of the Agreement.

(iv) The Commission considers that it is appropriate to terminate the agreement taking into account all the circumstances – s.226(b)

[67] Section 226(b) of the Act requires the Commission to take into account all the circumstances, including the views of the employees, each employer, and each employee organisation (if any), covered by the agreement and the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[68] Having taken into account all the circumstances and noting, in particular, that the majority of employees support termination of the Agreement and that the effect of termination of the Agreement is likely to be minimal on employees, the SDA and Revlon, I am satisfied that it would be appropriate to approve the termination of the Agreement in the circumstances.

Conclusion

[69] For all the above reasons and having taken into account all the circumstances in this matter, I am satisfied that it is not the contrary to the public interest and that it is appropriate to terminate the Agreement. Termination of the Agreement will take effect from midnight (i.e. after 11:59pm) on 30 June 2020. This will provide Revlon with a short period to put in place any administrative arrangements that may be necessary to implement the Letters of Employment and associated arrangements. An Order to that effect will be issued in conjunction with this decision.

Appearances:

M. Roucek for the Applicant.

B. Govind for the Shop, Distributive and Allied Employees’ Association.

Hearing details:

2020.

Canberra.

February 11 and 12

Applicant’s closing written submissions in reply received on 14 April 2020.

Attachment A

1 AE420991

2 Transcript at PN1177

3 MA000084

4 [2015] FWCFB 540

5 Ibid at [162]

6 Kellogg Brown & Root Pty Ltd and Others v Esso Australia Pty Ltd (2005) 139 IR 34 at [23]

7 Tahmoor Coal Pty Ltd [2010] FWA 6468 at [30]

8 Exhibit 1 at Annexure CJ1

9 Exhibit 1

10 Ibid at paragraph 12 of Question 2.1

11 Ibid at paragraph 2(d) of Question 2.3

12 Ibid at clause 4.4 of Annexure CJ2

13 Exhibits 2 and 3

14 Exhibit 1 at Annexure CJ2

15 Exhibit 6 at Attachment RB1

16 Transcript at PN814-818

17 Exhibit 1 at Annexure CJ1

18 Exhibit 4

19 Exhibit 1 at Annexure CJ1

20 [2013] FWCFB 8726

21 [2019] FWC 6143

22 [2016] FWCA 1769

23 [2016] FWCFB 3591

24 (2005) 139 IR 34

25 [2010] FWA 6468

26 Exhibit 6

27 Exhibit 3 at Attachment “SSJR-4”

28 Exhibit 6 at Attachment RB1

29 Exhibit 8 at Attachment AV1

30 Exhibit 3 at Attachment “SSJR-2”

31 Exhibit 8

32 Exhibit 3 at Attachment “SSJR-2”

33 Exhibit 8 at Attachment AV1

34 Exhibit 1 at Annexures CJ1 and CJ2

35 Exhibit 9

36 Exhibit 10

37 Exhibit 9

38 Exhibit 3 at Attachment “SSJR-2”

39 Exhibit 1 at Annexure CJ2

40 Exhibit 3 at Attachment “SSJR-4”

41 Exhibit 1 at Annexure CJ2

42 Exhibit 6 at paragraph 29.d. and Attachment RB4

43 [2014] FWCFB 7940 at [54]-[58]

Printed by authority of the Commonwealth Government Printer

Revlon Australia Pty Limited

[2020] FWCA 3290

25 JUNE 2020

DECISION

The Statutory framework

The Applicant’s case

The SDA’s case