Shop, Distributive and Allied Employees Association

[2011] FWA 6396

[2011] FWA 6396

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 5 - Application to terminate an enterprise instrument - an award

Shop, Distributive and Allied Employees Association
(EM2011/510, EM2011/511)

COMMISSIONER LEE MELBOURNE, 26 SEPTEMBER 2011

Termination of enterprise instruments.

[1] On 9 September 2011, the Shop, Distributive and Allied Employees Association (SDA) made application to Fair Work Australia for an order to terminate two enterprise instruments. Those instruments are known as the SDA - Campbells Cash & Carry Pty Ltd - Victoria - Award 2003 (AP827938) and the SDA - Campbells Cash & Carry Pty Ltd - Victoria - Award 2003 [Transitional] (AT827938). The application was made pursuant to Item 5 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] Both matters were heard before me on 16 September 2011. Mr A. Burke along with Mr G. Todd appeared for the SDA. Mrs J. Lipsham appeared for the company, Campbells Cash & Carry Pty Ltd.

[3] After hearing submissions from the parties, I delivered an ex tempore decision in which I granted the application to terminate the enterprise instruments as sought and provided an outline of my reasons for doing so. I reserved the right to publish revised and expanded written reasons. These are those revised and expanded written reasons.

[4] Item 5(4) of Schedule 6, to the Transitional Act provides that in making a decision as to whether to terminate an enterprise instrument or take some other action available under subitem (3), Fair Work Australia must take into account the factors listed in subitem (4) (a) to (h).

[5] Mr. Burke for the SDA made submissions going to all of the relevant elements of subitem (4). These oral submissions supplemented the grounds for the application made in the Form F1 filed by the SDA. Mrs. Lipsham for the employer supported the submissions of the SDA and submitted that the employer consented to the application for termination.

[6] I have taken into account in deciding this matter each of the factors contained in Item 5(4) of Schedule 6, to the Transitional Act.

[7] There is a modern award that would, but for the enterprise instruments, cover the persons who are covered by the instruments. That award is the Storage Services and Wholesale Award 2010.The content of that modern award provides a fair and relevant minimum safety net of terms and conditions consistent with the modern awards objective. The award is clearly capable of covering employees of Campbells Cash & Carry Pty Ltd.

[8] It was submitted by the SDA that the enterprise instruments have become less relevant with the passing of time. The SDA submitted that any enterprise specific terms and conditions of employment are now dealt with in a collective agreement applying to the enterprise. That agreement is known as the Campbells Cash & Carry Pty Ltd and SDA Union Collective Agreement 2008.

[9] The SDA submitted that there is not likely to be any impact on the persons covered by the enterprise instruments nor on the viability or competitiveness of the employer as a result of the termination of instruments. I accept the submissions of both Mr. Burke and Mrs. Lipsham, that the proposal to seek to have Fair Work Australia terminate these instruments has been subject to discussion amongst union representatives and employees as a part of the process of negotiating a new enterprise agreement.

[10] The application is granted and the enterprise instruments known as the SDA - Campbells Cash & Carry Pty Ltd - Victoria - Award 2003 (AP827938) and the SDA - Campbells Cash & Carry Pty Ltd - Victoria - Award 2003 [Transitional] (AT827938) are terminated. An order terminating the instruments is issued in conjunction with this decision. 1 The termination shall operate from 16 September 2011.

COMMISSIONER

Appearances:

A Burke and G Todd for the Shop, Distributive and Allied Employees Association

J Lipsham for Campbells Cash & Carry Pty Ltd

Hearing details:

2011
Melbourne:
September 15

 1   PR515038

Printed by authority of the Commonwealth Government Printer

<Price code A, PR514711>