Shop, Distributive and Allied Employees Association
[2017] FWCA 208
•30 JANUARY 2017
| [2017] FWCA 208 |
| 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
(AG2016/7130)
IGA BODDINGTON AND SDA AGREEMENT 2010
Retail industry | |
DEPUTY PRESIDENT BINET | PERTH, 30 JANUARY 2017 |
Application for termination of the IGA Boddington and SDA Agreement 2010.
[1] The Shop, Distributive and Allied Employees Association (SDAEA) has applied (Application) for the termination of the IGA Boddington 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 Bodiga Pty Ltd T/A IGA Boddington (Bodiga), the employees of Bodiga who are employed in the classifications set out in clause 6 of the Agreement (Employees) and the SDAEA.
[4] The SDAEA filed a Statutory Declaration by Mr Peter O’Keeffe, SDAEA official and secretary (O’Keeffe Declaration)in support of the Application. The O’Keeffe Declaration asserts that retail 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 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 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 Bodiga an outline of submissions as to why the Agreement should be terminated (SDAEA Submissions).
[9] The SDAEA Submissions point out that the Agreement was predicated on industrial minima which existed nearly 6 years ago and consequently, the Agreement provides for terms and conditions which are inferior to the current Award minima.
[10] The SDAEA Submissions warn that if Bodiga applies the Agreement’s terms, Bodiga is likely to experience an unfair competitive advantage over employers who observe the minimum conditions contained in the Award.
[11] The SDAEA Submissions claim that reverting back to the Award minima would be unlikely to jeopardise employment levels and/or inflation.
[12] The SDAEA Submissions submit that it is not only not contrary to the public interest, but it is in the public interest to terminate the Agreement as employees covered by the Agreement would be, on the whole, better off under the Award, taking into account all of the terms and conditions of both instruments.
[13] The Directions also directed Bodiga to file and serve submissions in response to the Application and any evidence on which it sought to rely in respect of the Application (Bodiga Submissions).
[14] In the Bodiga Submissions, Bodiga advised that there are currently approximately 22 casual employees covered by the Agreement and confirmed that it did not oppose the Application. According to Bodiga’s Submissions, terminating the Agreement will have no impact on the Employees and is not contrary to the public interest because the Employees have already transitioned to Award rates, terms and conditions. In fact, the Bodiga Submissions claim that terminating the Agreement and having the Award as the sole reference point for rates, terms and conditions of employment would remove confusion for management, employees and the payroll function of Bodiga.
[15] The Directions also directed Bodiga to provide a copy of the Application, the SDAEA Submissions, Bodiga Submissions and the Directions to each of the Employees. The Directions contained an invitation for 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 the Application may be made on the written materials filed in accordance with the Directions.
[16] On 22 December 2016, the FWC received a statutory declaration of Ms Kelly Anne Meaden on behalf of Bodiga confirming the Employees had been provided with the materials required by the Directions.
Consideration
[17] In the absence of any evidence to the contrary, I am satisfied that termination of the Agreement is not contrary to the public interest.
[18] Based on the material that is before me, including the O’Keeffe Declaration, the SDAEA Submissions and the Bodiga 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 any of the parties to the Agreement.
[19] Taking into account the above, I consider in the circumstances that it is appropriate to terminate the Agreement.
[20] Accordingly, the Agreementis terminated. The termination is to take effect on and from the date of this decision.
DEPUTY PRESIDENT
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