Shop, Distributive and Allied Employees Association

[2017] FWCA 2264

[2017] FWCA 2264

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Shop, Distributive and Allied Employees Association
(AG2017/1314)

SARA LEE STORES ENTERPRISE AGREEMENT 2014
(ODN AG2014/440)  [AE407216]

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 APRIL 2017

Application for termination of the Sara Lee Stores Enterprise Agreement 2014.

[1] The Shop, Distributive and Allied Employees Association (Applicant) have applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Sara Lee Stores Enterprise Agreement 2014 (Agreement). The Agreement was made on 17 February 2014 and at that time, it was expressed to cover Sara Lee Australia Pty Ltd. On 1 July 2014, the name of the employer changed and as per clause 5(a) of the Agreement, it was expressed to cover McCain Foods (Aust) Pty Ltd (Employer). The Agreement covered the Employer and its employees who are covered by the classifications of work prescribed in clause 5 of the Agreement and the Shop, Distributive and Allied Employees Association. The Agreement has passed its nominal expiry date.

[2] 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.”

[3] Section 226 of the Act provides:

“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.”

[4] Correspondence was sent to the Employer on 18 April 2017 seeking its view in relation to the application. In correspondence to my Chambers of 19 April 2017, Mr B Neylon of the Employer advised that it does not oppose the application. There are no employees employed by the Employer covered by the Agreement.

[5] Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 24 April 2017.

DEPUTY PRESIDENT

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