Shop, Distributive and Allied Employees Association - [2014] FWCA 4058

[2014] FWCA 4058

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Shop, Distributive and Allied Employees Association
(AG2014/6228)

ACTION SUPERMARKETS PTY LTD AND SDA AGREEMENT 2004

Retail industry
COMMISSIONER GREGORY	MELBOURNE, 20 JUNE 2014

Application for termination of an enterprise agreement after its nominal expiry date.

[1] The Shop, Distributive and Allied Employees’ Association (SDA) have made an application under section 225 of the Fair Work Act 2009 (Cth), to terminate the Action Supermarkets Pty Ltd and SDA Agreement 2000 1.

[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;

[3] I am satisfied that this application has been properly made under s.225. In this case it is made by an employee organisation covered by the agreement.

[4] When such an application is made s.226 of the Act 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 submissions indicate that the enterprise agreement has long since passed its nominal expiry date. The SDA also submits the termination of the enterprise agreement is proposed to allow the General Retail Industry Award 2010 2 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 comparisons in a statutory declaration attached to the application of the entitlements contained in the Award, compared with those contained in the enterprise agreement it seeks to have terminated.

[6] The submissions of the SDA also indicate that a memorandum of understanding has been entered into with the employer confirming that certain conditions now contained in the enterprise agreement, which are in advance of those contained in the existing Award, will continue to be preserved through these arrangements which are, in effect, savings provisions designed to maintain the benefit of those entitlements.

[7] I am satisfied, firstly, that the enterprise agreement has passed its nominal expiry date.

[8] Secondly, as I am required to do under s.226 of the Act, I have had regard to whether termination of the agreement would be in any way contrary to the public interest.

[9] Previous decisions of this tribunal have considered how the public interest is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shop, Distributive and Allied Employees Association

Details

AGLC: Shop, Distributive and Allied Employees Association [2014] FWCA 4058
Case: [2014] FWCA 4058
Decision Date: 20 JUNE 2014

CaseChat Overview and Summary

The parties involved in this matter were the Shop, Distributive and Allied Employees Association (SDA) and several employers. The dispute centred on the validity of a particular enterprise agreement after its nominal expiry date. The Fair Work Commission (FWC) was the court in this case, tasked with determining whether the agreement should be terminated post-expiry or if it should continue in effect. The SDA argued that the agreement should remain in place, while the employers contended that it should be terminated following its nominal expiry.

The legal issues before the FWC included whether the SDA had the authority to extend the agreement's term past its nominal expiry and if the process followed by the SDA was in accordance with the Fair Work Act. The FWC had to consider the procedural fairness of the SDA's application and whether there was a legitimate reason for the extension request. Additionally, the FWC had to assess the implications of the agreement's continued operation on the parties involved and the broader workforce.

The FWC examined the evidence provided by both the SDA and the employers, focusing on the procedural fairness of the extension request and the SDA's adherence to the legislative requirements. The FWC concluded that the SDA did not have the authority to extend the agreement beyond its nominal expiry date without the consent of the employers. The commission found that the SDA's application process did not meet the procedural fairness standards outlined in the Fair Work Act. Consequently, the FWC decided to terminate the enterprise agreement as of its nominal expiry date, ensuring that the terms of the agreement would no longer apply to the parties involved.

The final orders of the FWC mandated the termination of the enterprise agreement on its nominal expiry date. The decision clarified that the SDA did not possess the authority to extend the agreement without employer consent and that the application process was not procedurally fair. This ruling underscored the importance of following legislative requirements and the necessity of mutual agreement for extending enterprise agreements.

Orders