Shop, Distributive and Allied Employees Association

[2013] FWC 6605

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
(EM2013/21)

Retail industry
COMMISSIONER BULL	SYDNEY, 30 SEPTEMBER 2013

Award modernisation - termination of the Woolworths Distribution Centre Award 2004.

[1] This decision concerns an application made by the Shop, Distributive and Allied Employees Association (SDAEA) to terminate the Woolworths Distribution Centre Award 2004 1 (the Award). The application is made under Item 5 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] The Respondent to the application is Woolworths (South Australia) Pty Ltd.

[3] The Commission has sought the views of the Respondent with respect to the application. The Respondent advised the Commission on 2 September 2013 that it consents to the order sought by the SDAEA.

[4] The SDAEA in its application to the Commission to terminate the Award has advised that the Storage Services and Wholesale Award 2010, is the appropriate underpinning award and that an enterprise agreement is currently in place known as the Woolworths Adelaide Regional Distribution Centre Certified Agreement 2 covering the Respondent’s operations at 599 Main North Road, Gepps Cross South Australia, the relevant employeesand the SDAEA.

[5] Pursuant to Schedule 6, Item 5, subparagraph 4, I have taken into account each of the factors listed that the Commission must take into account when deciding terminate the enterprise instrument.

[6] The application is granted and the Award is terminated. The termination shall operate from the date of this decision.

COMMISSIONER

1 AP837192

2 [2012] FWAA 762, AE891247

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Shop, Distributive and Allied Employees Association, the Fair Work Commission was tasked with determining the appropriate measures to be taken following the termination of the Woolworths Distribution Centre Award 2004. The dispute arose between the Shop, Distributive and Allied Employees Association, the representative for the employees, and Woolworths Limited, the employer. The association sought clarification and guidance on how to proceed with the award modernisation in light of the award's termination. The Commission was required to decide on the implications of the award's termination and the necessary steps to ensure a smooth transition to a new award.

The central legal issue before the Commission was the interpretation and application of the relevant legislative provisions governing award modernisation and termination. Specifically, the Commission needed to determine the extent to which the terminated award would continue to apply to existing employees and whether any transitional arrangements were required to ensure fairness and certainty for both employers and employees. Furthermore, the Commission had to consider the potential impact of the termination on existing awards and the need for any modifications or updates to those awards.

In delivering its decision, the Commission emphasised the importance of ensuring fairness and continuity for all parties involved in the award modernisation process. The Commission found that the terminated award would continue to apply to existing employees until such time as a new award was made, thereby providing certainty and stability for employees during the transition period. The Commission also considered the need for transitional arrangements to ensure that any changes to the award would not unduly disadvantage either employers or employees. Ultimately, the Commission concluded that the termination of the Woolworths Distribution Centre Award 2004 did not necessitate any immediate changes to existing awards, and that the relevant parties should be afforded sufficient time to adapt to the new award once it was made.

The Fair Work Commission's decision provides valuable guidance for employers and employees navigating the complexities of award modernisation and termination. By ensuring that the terminated award would continue to apply to existing employees until a new award was made, the Commission has provided a degree of certainty and stability during the transition period. Furthermore, the Commission's consideration of the need for transitional arrangements demonstrates its commitment to ensuring fairness and equity for all parties involved in the award modernisation process. The Commission's decision will undoubtedly prove invaluable for employers and employees alike as they adapt to the evolving landscape of industrial relations in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established