Shop, Distributive and Allied Employees Association

[2013] FWC 8595

[2013] FWC 8595

FAIR WORK COMMISSION

DECISION

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

Shop, Distributive and Allied Employees Association
(EM2013/32)

Retail industry
COMMISSIONER GREGORY	MELBOURNE, 20 NOVEMBER 2013

Award Modernisation - termination of the Woolworths (South Australia and Northern Territory) Award, 2003 and the Woolworths (South Australia and Northern Territory) Award, 2003 [Transitional].

Introduction

[1] The Shop, Distributive and Allied Employees Association has made application to terminate the Woolworths (South Australia and Northern Territory) Award, 2003 1and the Woolworths (South Australia and Northern Territory) Award, 2003 [Transitional]2 (the Awards). The application is made under Item 5 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act).

The Relevant Legislation

[2] Item 5 in Schedule 6 of the Transitional Act states:

“(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, FWA must take into account the following:

(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;

(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;

(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);

(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;

(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;

(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;

(g) the views of the persons covered by the enterprise instrument;

(h) any other matter prescribed by the regulations.”

Decision

[3] The application states that the two awards are both enterprise instruments for the purposes of Item 5 of Schedule 6 of the Transitional Act.

[4] The Applicant has also indicated it has reached agreement with the Employer that it is appropriate to terminate the two instruments. It has also indicated the Employer and the relevant employees are now covered by the General Retail Industry Award 2010 established as part of the award modernisation process and providing standardised terms and conditions of employment for employees across the retail and wholesale industry.

[5] The Employer has also confirmed it does not object to the relevant instruments being terminated.

[6] I am satisfied having regard to the provisions contained in Item 5 of Schedule 6 of the Transitional Act that it is appropriate in all the circumstances to terminate the Woolworths (South Australia and Northern Territory) Award, 2003 and the Woolworths (South Australia and Northern Territory) Award, 2003 [Transitional].

[7] The application is accordingly granted and will take effect from the date of this decision.

 1   AP825337

 2   AT825337

Printed by authority of the Commonwealth Government Printer

<Price code A, PR544040 >