Shop, Distributive and Allied Employees Association

[2013] FWCA 1828

[2013] FWCA 1828

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Shop, Distributive and Allied Employees Association
(AG2013/4998)

GRAYSON PTY LTD COLLECTIVE AGREEMENT 2007

Retail industry
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	BRISBANE, 27 MARCH 2013

Application for termination of the Grayson Pty Ltd Collective Agreement 2007.

[1] The Shop, Distributive and Allied Employees Association (SDA) has made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s.225 of the Fair Work Act 2009 (the Act) to terminate the Grayson Pty Ltd Collective Agreement 2007 1 (the Agreement).

[2] The Agreement has a nominal expiry date of 30 June 2011 and is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[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] Item 16 of Schedule 3 of the Transitional Act provides, so far as presently relevant, that:

“Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[5] The application to terminate the Agreement was lodged on 13 February 2013. The SDA subsequently provided further information in regard to the application, as well as a copy of the information that was to be distributed to employees regarding the application for termination of the Agreement.

[6] The Agreement is expressed to cover Grayson Pty Ltd, which was liquidated in 2012. By virtue of a transfer of business at that time, the employer now covered by Agreement is Holly Holdings Pty Ltd (the Employer). The Agreement is also expressed to cover the SDA and employees of the kind described in clause 1.6.1 of the Agreement. The SDA has indicated that the result of terminating the Agreement would be that the General Retail Industry Award 2010 2(the Modern Award) would apply to the employees currently covered by the Agreement.

[7] On balance the terms of the Modern Award appear to be at least as favourable to employees as those of the Agreement. Although some base rates of pay under the Agreement are higher than those under the Modern Award, the Modern Award contains more beneficial penalty rates, rates of casual loading, ordinary hours of work, allowances, junior rates, and other entitlements. Employees are therefore likely to be no worse off if the Agreement is terminated. The SDA has indicated that the Employer supports the termination of the Agreement. It seems likely that the termination of the Agreement will have benefits for the Employer, as it will reduce complexity by bringing all of their employees under a single industrial instrument, that is, the Modern Award.

[8] In relation to the views of the employees covered by the Agreement, the application was listed for a hearing on the papers on 19 March 2013. Copies of the Notice of Listing were required to be posted on employee noticeboards at the relevant workplace. The Notice of Listing stated that the Commission is required to take into account the views of the employees covered by the Agreement in deciding whether to terminate it. The Notice requested that any person who wished to be heard in relation to the application contact my chambers at least one hour before the listing, and stated that if they did so, the matter would be listed for an attendance hearing. No employee or other person contacted my chambers in this regard.

[9] On the available material, it may be concluded that the termination of the Agreement would not be contrary to the public interest.

[10] In all the circumstances, I am satisfied that the requirements of s.226 of the Act relevant to this application have been met. The application is approved and, in accordance with s.227 of the Act, the Agreement is terminated with effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

 1 AC312306.

 2   MA000004.

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<Price code A, AC312306  PR535129>