Samzach Services Pty Ltd T/A The Daves

[2021] FWCA 5390

[2021] FWCA 5390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Samzach Services Pty Ltd T/A The Daves
(AG2021/6951)

THE DAVES PTY LTD ENTERPRISE AGREEMENT 2017

Retail industry
DEPUTY PRESIDENT EASTON	SYDNEY, 31 AUGUST 2021

Application for termination of the The Daves Enterprise Agreement 2017.

[1] On 27 August 2021 Samzach Services Pty Ltd T/A The Daves (the Applicant) filed an application under s.222 of the Fair Work Act 2009 (Cth) (the Act) for the termination of The Daves Enterprise Agreement 2017 (the Agreement).

[2] The Applicant relies upon a declaration made by Mr David Sampaklis, Company Director which outlined the process taken for the employees to approve the termination of the Agreement.

[3] Section 223 of the Act requires the FWC to approve the termination of an agreement if certain conditions apply:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[4] Section 223(a) requires consideration of whether the Applicant employer has complied with s.220(2)(b) of the Act. Mr Sampaklis’ declaration indicates that he sent relevant employees an email on 9 August 2021 including reasons for proposing the termination of the Agreement. On 10 August 2021 detailed briefings were held for employees at each of the Applicant’s stores via Microsoft Teams. A PowerPoint presentation with explanatory material was shown to employees. A further email was sent on the same day, attaching a letter with detailed information about the termination of the Agreement.

[5] An email on 11 August 2021 to all staff setting out the time and online voting method to be used.

[6] From the information supplied by the Applicant to its employees and the Commission, Telstra has decided to end licensee arrangements and directly operate all of its stores. The Applicant’s stores are scheduled to transfer back to Telstra operation in late January or early February 2022. Telstra intends to employ most or perhaps all of the Applicant’s employees but will not offer positions to the Applicant’s employees if the Agreement is still operative. The Applicant has given undertakings to its employees and to the Commission that it will continue to apply the terms of the Agreement for as long as each employee remains employed by the Applicant.

[7] Of the 82 employees covered by the Agreement, 74 votes were cast. 70 of the employees who voted supported the termination of the Agreement. Accordingly, I am satisfied that the termination was agreed to by a majority in accordance with s.221(1) and s.223(b).

[8] There are no other reasonable grounds for considering that the employees have not agreed to the termination (per s.223(c)). Upon termination of the Agreement, the employees will be covered by the Telstra Enterprise Agreement 2019-2021.

[9] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from 31 August 2021.

DEPUTY PRESIDENT

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