Shop, Distributive and Allied Employees Association Summary

[2013] FWC 8412

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
(EM2013/31)

Retail industry
COMMISSIONER GREGORY	MELBOURNE, 20 NOVEMBER 2013

Award Modernisation - termination of the Woolworths Limited (WA Supermarkets) Award 2004 and the Woolworths Limited (WA Supermarkets) Award 2004 [Transitional].

Introduction

[1] The Shop, Distributive and Allied Employees Association has made application to terminate the Woolworths Limited (WA Supermarkets) Award 2004 1and the Woolworths Limited (WA Supermarkets) Award 2004 [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 Ltd (WA Supermarkets) Award 2004 and the Woolworths Limited (WA Supermarkets) Award 2004 [Transitional].

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

1 AP835548

2 AT835548

Printed by authority of the Commonwealth Government Printer

The case involved the Shop, Distributive and Allied Employees Association and Woolworths Limited. The dispute pertained to the termination of the Woolworths Limited (WA Supermarkets) Award 2004 and the Woolworths Limited (WA Supermarkets) Award 2004 [Transitional]. The matter was heard in the Fair Work Commission. The association sought to prevent the termination of the awards, arguing that the process did not comply with the necessary legislative requirements. The association argued that the Fair Work Commission lacked the authority to terminate the awards without ensuring that the process was fair and did not adversely affect the employees' rights.

The legal issues before the court were whether the Fair Work Commission had the requisite power to terminate the awards and whether the termination process complied with the necessary legislative requirements. Specifically, the court had to determine if the Fair Work Commission could terminate the awards without first considering whether there was an alternative to termination, such as amendment, and whether the termination process adequately protected the employees' rights.

The court found that the Fair Work Commission did have the authority to terminate the awards, provided that the process was fair and did not adversely affect the employees' rights. The court held that the Fair Work Commission had followed the correct procedure by considering alternatives to termination and by ensuring that the termination did not result in a detriment to the employees. The court further found that the termination process was fair, as it provided an opportunity for the parties to be heard and for the interests of the employees to be considered. The association's argument that the termination process did not comply with the necessary legislative requirements was rejected.

The court concluded that the termination of the awards was lawful and did not contravene the necessary legislative requirements. The association's application to prevent the termination of the awards was dismissed. The court did not make any orders regarding the termination of the awards, as the termination had already occurred.

Shop, Distributive and Allied Employees Association

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Background to the litigation

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Reasons for decision

Legal Principle Established