Shop, Distributive and Allied Employees’ Association
[2022] FWCA 4042
•18 NOVEMBER 2022
| [2022] FWCA 4042 |
| 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
(AG2022/3908)
| Retail industry | |
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 18 NOVEMBER 2022 |
Application to terminate the SDA, MGAV and Brenjac Pty Ltd (Former David’s Supermarkets- Springvale South) Certified Agreement 2008.
An application was filed by the Shop, Distributive and Allied Employees’ Association (SDA) seeking the termination of the SDA, MGAV and Brenjac Pty Ltd (Former David’s Supermarkets- Springvale South) Certified Agreement 2008[1] (the Agreement) pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date of 10 November 2011.
The employer party to the Agreement is Brenjac Pty Ltd (the Employer). The SDA confirmed that the Employer was served a copy of the Form F28 application, the Form F24C statutory declaration made by the SDA’s Mr Gerard Dwyer on 14 September 2022, and an attachment comparing the Agreement and the General Retail Industry Award 2020 (the Comparison Document).
Directions I issued on 28 September 2022 were sent via Express Post to the registered address of the Employer, and required:
· the Employer to provide a copy of the Form F28, the Form F24C statutory declaration, the Comparison Document and the Directions to its employees via email and place a copy on a noticeboard at each workplace that is used for communications with staff.
· the Employer to lodge with the Commission and serve on the SDA, and all of its employees any material and witness statements upon which it relied, including material which addresses whether it is or is not contrary to the public interest for the Commission to terminate the Agreement, material which expresses the views of the Employer regarding the application to terminate the Agreement and material which describes the circumstances of the Employer, including the likely effect that the termination of the Agreement would have on it. Further, I required any submissions from the Employer on the impact of the Agreement no longer applying to it and the General Retail Industry Award 2022 (the Award) instead setting the terms and conditions of employment.
· any employee who wished to do so to send to the Commission, the SDA and the Employer any material addressing the same issues.
· the SDA and any interested employee to lodge with the Commission, and serve on the Employer, any reply material.
· the Employer to provide to its employees via email, any material upon which the SDA relied in reply.
· any employee who wished to be kept updated in this matter to confirm this by email to my Chambers.
On 8 November 2022, my Chambers received an email from the SDA advising that the documents sent to the Employer by registered post on 27 October 2022 had been returned to the SDA National Office. A search of the Australia Post website indicates that the Directions sent via Express Post by my Chambers to the registered address of the Employer on 29 September 2022 had been delivered to the Employer on 30 September 2022. However, no response nor material from the Employer was received in accordance with my Directions.
On 15 November 2022, my Chambers received a further email from the SDA advising that it had been informed by the Master Grocers Association (MGA) that its understanding was that the Employer had sold its Springvale South store approximately 12 years ago and is therefore not the current employer at this store. SDA further advised that an online search shows that the IGA store in Springvale South is permanently closed and the last reviews of the store date back 5 years. I conducted a Telephone Mention on 17 November 2022 with Mr Angelo Pardo and Mr Gavin van Rensburg from the SDA and Mr Martin Stirling of the MGA on another matter before me. I took the opportunity to discuss this recent correspondence in this matter and advised them that in the circumstances, I would proceed to determine the matter on the basis of the material before me. There was no objection made to this proposed course.
Legislation
As outlined above, the Agreement is a collective agreement-based transitional instrument to which Item 16 of Schedule 3 of the Transitional Act applies. The effect of Item 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivision D of Division 7 of Part 2-4 of the Act apply as though a reference to an enterprise agreement includes a reference to a collective agreement-based transitional instrument.
The Act therefore relevantly provides as follows:
“225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.”
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.
227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”
Consideration
An employee organisation covered by an agreement may apply under s.225(c) of the Act to the Commission for the termination of the Agreement if it has passed its nominal expiry date. As noted above at [1], the Agreement nominally expired on 10 November 2011. Further, I note that the SDA is an employee organisation covered by the Agreement. It follows that I am satisfied that the SDA has standing to bring the Application under s.225(c) of the Act.
The Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd[2] concluded that it cannot be expected that the terms and conditions of an agreement will continue unaltered in perpetuity after it has passed its expiry date. This is because the Act contemplates the terms and conditions of an agreement may be altered by making a new agreement or by terminating the existing agreement.[3]
In having regard to the requirements of s.226 of the Act, the particular circumstances of this matter and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement (s.226(a)). I am also satisfied that it is appropriate to do so, taking into account all the circumstances (s.226(b)). In this latter regard:
a)I note that as an employee organisation covered by the Agreement, the SDA filed the application to terminate the Agreement and can be satisfied therefore that it supports the Agreement being terminated.
b)Based on the material before me, it appears the Employer is no longer in operation and there are likely no longer any employees covered by the Agreement. As such, there are likely no views of the Employer or employees for me to take account of nor any effects of termination to be felt.
c)I am satisfied the Employer has been on notice that the Application was before me through the Directions I issued on 28 September 2022 and the various requirements outlined therein.
d)I am satisfied that the Employer (in the event that it is still in operation) had a reasonable period of time to file material should they have wished to do so.
e)I had outlined in the Directions that the impact of the Agreement being terminated would be the Award setting the terms and conditions of employment and a hyperlink to the Award was provided.
f)Ultimately, no submissions from the Employer nor any employees have been received so in all the circumstances, I consider I can do no more than accord neutrality to the views of the Employer and the employees when considering the application.
Given my conclusions above, I must terminate the Agreement. In accordance with s.227 of the Act, the termination will take effect from 18 November 2022.
DEPUTY PRESIDENT
[1] AG835799.
[2] [2015] FWCFB 540.
[3] Ibid at [176].
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