Shop, Distributive and Allied Employees Association

[2014] FWCA 4301

[2014] FWCA 4301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Shop, Distributive and Allied Employees Association
(AG2013/2367)

SPOTLIGHT PTY LTD AUSTRALIAN STORES ENTERPRISE AGREEMENT 2009

Retail industry
COMMISSIONER GREGORY	MELBOURNE, 27 JUNE 2014

Application for termination of the Spotlight Pty Ltd Australian Stores Enterprise Agreement 2009.

[1] The Shop Distributive and Allied Employees Association (the SDA) have made application under section 225 of the Fair Work Act to terminate the Spotlight Pty Ltd Australian Stores Enterprise Agreement 2009.

[2] Section 225 of the Act states:

“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] I am satisfied that this application has been properly made under section 225. In this case it is made by an employee organisation covered by the agreement being in the SDA.

[4] In dealing with such an application section 226 provides:

“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.”

[5] The SDA’s submissions indicate the Agreement has passed its nominal expiry date, being 30 September 2012. The SDA also submits termination of the Agreement is proposed to allow the General Retail Industry Award 2010 to govern the terms and conditions of employment of the employees. In its submission this will generally provide a better outcome for the employees, and it has provided detailed comparisons of both the wage rates that apply under the Award compared with those existing under the Agreement for both permanent and casual employees. It has also provided a detailed comparison of other conditions in the Award, and in the existing Agreement. Details have also been provided about the breakdown of employees in the different States and Territories in terms of employment type, being full-time, part-time or casual. That information indicates that more than 3,800 employees are involved, in total.

[6] The SDA’s submissions also indicate it has an understanding with the Employer that certain conditions now provided by the Agreement, which are generally seen to be in advance of those contained in the General Retail Industry Award 2010, will be preserved on the basis of an undertaking provided by the Employer until such time as the Award rate is equal to or higher than the saved rate. These issues are understood to concern, in particular, the entitlements for casual employees in Victoria in regard to work on weekdays, and for casual employees in Victoria, Queensland and New South Wales in regard to work performed on weekends.

[7] The SDA has also provided details about its engagement with employees across all States and Territories in relation to this application to terminate the existing Agreement. It has made reference to correspondence distributed in all stores about the application, which also provided the opportunity for employees to provide feedback and comments in response. The SDA also submits the wage comparison information referred to previously has also been provided to the employees, together with the other documentation comparing the terms and conditions in the Agreement with those in the Award.

[8] The SDA’s application also indicates its organisers have visited various Spotlight stores to meet with employees and discuss and deal with any issues they wish to raise about the application and why it is being proposed. The application also provides examples of some of the responses received from employees. In summary, the SDA submits the employees are overwhelmingly in favour of the application and of the benefit it will provide to their circumstances.

[9] Having regard to the requirements of the Act I am satisfied, firstly, that the Agreement has passed its nominal expiry date.

[10] Secondly, section 226 requires that I have regard to whether termination of the Agreement would be in any way contrary to the public interest.

[11] Previous decisions of this Tribunal have considered how the public interest is to be assessed. Those decisions have determined that the notion of the public interest is not easily or precisely defined. However, it generally refers to matters that might affect the public as a whole, such as the achievement or otherwise of the various objects of the Act, and other matters such as employment levels, inflation and the maintenance of proper industrial standards.

[12] Reference to the public interest might also involve something distinct from the interests of the parties, although they might also in particular cases be similarly affected.

[13] I am satisfied based on the submissions and evidence in this matter that it would not be contrary to be public interest to terminate the Agreement and I am satisfied it would not be impacted in any way by such an outcome. There is nothing in the circumstances of this matter to suggest the way the employment arrangements are structured, or what instrument applies to regulate those arrangements, is going to impact on any broader considerations. While the outcome of these proceedings might be of significance to the employer and its employees I cannot conceive of any wider public interest considerations that would be similarly impacted, or indeed any other considerations that would be contrary to the public interest. I also note the submissions of the SDA that generally it is not in the public interest for an enterprise agreement, which is passed its nominal expiry date, to provide terms and conditions of employment that fall below the “safety net” of terms and conditions contained in the underlying award, in this case being the General Retail Industry Award 2010.

[14] I have also had regard to the views of the employees and the employer, as well as the employee organisation covered by the Agreement, and to their particular circumstances in each case and the likely effect that termination will have on each of them.

[15] In terms of the views of the employees I am satisfied based on the submissions and evidence that both the employer and the SDA have provided opportunities to the employees to understand what the application is about and why termination of the existing enterprise agreement is being proposed. Apart from what has been indicated in the submissions made by the SDA the employer has also indicated that information has been made available to employees through its intranet.

[16] Based on the submissions before the Commission I’m not aware of any evidence of any objection or any adverse reaction from employees to what is being proposed by way of termination of the Agreement and, indeed, based on the submissions and material provided to the Commission it would appear the employees will generally be better off under the coverage of the Award than the Agreement.

[17] Based on the submissions and evidence I have referred to I am also satisfied the various requirements in s.226(b) of the Act have been taken into account and it is appropriate to terminate the Agreement having taken into account all of those relevant circumstances.

[18] The only other matter the Commission needs to address is when termination of the Agreement should take effect. Both parties agreed 30 June 2014 was an appropriate date. I am also satisfied this date is appropriate and determine that termination of the Spotlight Pty Ltd Australian Stores Enterprise Agreement 2009 will take effect on 30 June 2014.

COMMISSIONER

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