Shop, Distributive and Allied Employees Association

[2017] FWCA 225

[2017] FWCA 225

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
(AG2016/7133)

INGLEWOOD FRESH IGA AND SDA AGREEMENT 2010

Retail industry
DEPUTY PRESIDENT BINET	PERTH, 31 JANUARY 2017

Application for termination of the Inglewood Fresh IGA and SDA Agreement 2010.

[1] The Shop, Distributive and Allied Employees Association (SDAEA) has applied (Application) for the termination of the Inglewood Fresh IGA and SDA Agreement 2010 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 1 February 2013.

[3] The parties to the Agreement are Oasis Nominees Pty Ltd T/A Inglewood Fresh IGA (Employer), the employees of the Employer employed in the classifications set out in clause 6 of the Agreement (Employees) and the SDAEA.

[4] The SDAEA has filed a Statutory Declaration by Mr Peter O’Keeffe, SDAEA official and secretary (O’Keeffe Declaration) in support of the Application which asserts that employees covered by the Agreement are currently worse off overall than if their pay and conditions were provided for by the relevant Award, the General Retail Industry Award 2010 (Award).

[5] The O’Keeffe Declaration contains, as an annexure, a comparison of some key pay and conditions between the Agreement and the Award.

[6] Section 225 of the FW Act states:

“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.”

[7] Section 226 of the FW Act states:

“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.”

[8] In accordance with directions issued to the parties on 1 December 2016 (Directions), the SDAEA filed with the Fair Work Commission (FWC) and served on the Employer an outline of submissions as to why the Agreement should be terminated (SDAEA Submissions). The SDAEA Submissions assert that:

(a) the Agreement is nearly 4 years past its nominal expiry date, and was predicated on industrial minima which existed nearly 6 years ago. Consequently, the Agreement provides for terms and conditions which are inferior to the Award minima;

(b) if the Employer continues to apply the Agreement’s terms, the Employer is likely to experience an unfair competitive advantage over employers who observe the minimum conditions contained in the Award;

(c) reverting back to the Award minima would be unlikely to jeopardise employment levels and/or inflation;

(d) it is not only not contrary to the public interest, but it is in the public interest to terminate the Agreement; and

(e) the Employees covered by the Agreement would, on the whole, be better off under the Award, taking into account all of the terms and conditions of both instruments.

[9] The Directions also directed the Employer to file and serve submissions in response to the Application and any evidence on which it sought to rely in respect of the Application (Employer Submissions).

[10] The Employer Submissions revealed that the Inglewood Fresh IGA store closed permanently on or about 28 June 2015. According to the Employer Submissions the Employer no longer employs any persons as an employee, nor is any person still covered by the Agreement. The Employer Submissions state that the Employer does not oppose the termination of the Agreement, that termination of the Agreement will be of no effect on the Employer or any employees and that the Application is in the public interest.

[11] The Directions also directed the Employer to provide a copy of the Application, the SDAEA Submissions, the Employer Submissions and the Directions to each employee whose terms of employment are regulated by the Agreement. The Directions contained an invitation for the Employer or any employee who wished to be heard with respect to the Application to contact the FWC within 2 weeks of receiving a copy of these materials. The Directions advised that, in the absence of any such contact being made, a conclusion about this Application may be made on the written materials filed in accordance with the Directions.

[12] On 6 January 2017, the FWC received a statutory declaration of Mr Gino Divitini on behalf of the Employer confirming that it currently does not employ any persons, nor is any person still employed, under the Agreement. Consequently, the Employer was not able to comply with the directions set out in paragraph [11] above.

Consideration

[13] In the absence of any evidence to the contrary, I am satisfied that termination of the Agreement is not contrary to the public interest.

[14] Based on the material that is before me, including the O’Keeffe Statutory Declaration, the SDAEA Submissions and the Employer Submissions, and in absence of any submissions from affected Employees, I am satisfied that the termination of the Agreement would not have any adverse effect on the parties to the Agreement.

[15] Taking into account the above, I consider in the circumstances that it is appropriate to terminate the Agreement.

[16] Accordingly, the Agreementis terminated. The termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

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