Shop, Distributive and Allied Employees’ Association Summary

[2022] FWCA 3627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Shop, Distributive and Allied Employees’ Association

(AG2022/3892)

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 16 NOVEMBER 2022

Application for termination of the Master Grocers Australia Limited (King’s Family Supermarkets) and Shop, Distributive and Allied Employees’ Association Enterprise Agreement 2014.

On 14 September 2022, Shop, Distributive and Allied Employees’ Association (SDA) filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Master Grocers Australia Limited (King’s Family Supermarkets) and Shop, Distributive and Allied Employees’ Association Enterprise Agreement 2014 (the Agreement). The Agreement is a single enterprise agreement which nominally expired on 30 July 2017.[1] I note that the Agreement covers the SDA.

Accompanying the Application was a Form F24C statutory declaration made by Gerard Andrew Dwyer, National Secretary/Treasurer of the SDA, on 13 September 2022. The employer party to the Agreement is King’s Family Supermarkets Pty Ltd (the Employer).[2] The SDA confirmed that the Employer was deregistered on 22 August 2021 and as such, was not served a copy of the Form F24B application and the Form F24C statutory declaration. On 28 September 2022, an email was sent from my Chambers to the SDA providing it with an opportunity to file any further material upon which it intended to reply upon by 4pm on Wednesday, 12 October 2022.

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 30 July 2017. Further, I note that the SDA is an employee organisation covered by the Agreement.[3] As such, 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[4] 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.[5]

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)) and it is appropriate to do so, taking into account all the circumstances (s.226(b)). In this latter regard, I note that as an employee organisation covered by the Agreement, the SDA filed the application to terminate the Agreement. Clearly, it supports the Agreement being terminated. Further, I note that as the Employer is deregistered and there are no longer any employees covered by the Agreement, there are no views of the Employer or employees for me to take account of nor any effects of termination to be felt.

Given my conclusions above, I must terminate the Agreement. In accordance with s.227 of the Act, the termination will take effect from 16 November 2022.

DEPUTY PRESIDENT

[1] AE409223 at clause 5.

[2] Ibid at clause 4(a).

[3] Ibid at clause 4(c).

[4] [2015] FWCFB 540.

[5] Ibid at [176].

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission (FWC) considered an application by the Shop, Distributive and Allied Employees’ Association (SDA) to terminate the Master Grocers Australia Limited (King’s Family Supermarkets) and Shop, Distributive and Allied Employees’ Association Enterprise Agreement 2014. The Agreement, which nominally expired on 30 July 2017, was brought to the attention of the Commission by the SDA on 14 September 2022. The employer, King’s Family Supermarkets, had been deregistered on 22 August 2021 and, as such, was not served with the application or statutory declaration. The SDA confirmed the employer's deregistration and noted that there were no longer any employees covered by the Agreement.

The legal issues the FWC had to decide included whether the SDA had the standing to apply for the termination of the Agreement under section 225(c) of the Fair Work Act 2009 (the Act) and whether it was appropriate to terminate the Agreement in the circumstances of this case. The FWC noted that the Agreement had passed its nominal expiry date and the SDA, as an employee organisation covered by the Agreement, had standing to apply for its termination. The Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd established that the terms and conditions of an agreement should not continue unaltered in perpetuity after its expiry date, as the Act contemplates that the terms and conditions of an agreement may be altered by making a new agreement or by terminating the existing agreement.

The FWC concluded that it was not contrary to the public interest to terminate the Agreement under section 226(a) of the Act and it was appropriate to do so, taking into account all the circumstances under section 226(b). The FWC noted that the SDA filed the application to terminate the Agreement and supported its termination. The FWC also noted that as the employer was deregistered and there were no longer any employees covered by the Agreement, there were no views of the employer or employees for the FWC to take account of nor any effects of termination to be felt. Therefore, the FWC terminated the Agreement under section 227 of the Act, with the termination taking effect from 16 November 2022.

Shop, Distributive and Allied Employees’ Association

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established