Shop, Distributive and Allied Employees Association

[2019] FWCA 4201

[2019] FWCA 4201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Shop, Distributive and Allied Employees Association
(AG2019/1029)

BRAS N THINGS ENTERPRISE AGREEMENT 2014

Retail industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 18 JUNE 2019

Application for termination of the Bras N Things Enterprise Agreement 2014.

[1] The Shop, Distributive and Allied Employees’ Association (Applicant) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Bras N Things Enterprise Agreement 2014 (AG2014/6342) (Agreement). The Agreement covers the Applicant, Bras N Things Pty Ltd (Employer) and all retail store team members of Bras N Things within the classifications of the Agreement. The Agreement nominally expired on 31 March 2018.

[2] I issued directions on 12 April 2019 in which the Employer and any employees covered by the Agreement were invited to advise the Fair Work Commission (Commission) of their response to the application. No material was received from the Employer or any employee covered by the Agreement. However, I note that the application is said to have been made with the support of the Employer. 1

[3] In the circumstances, I have decided to deal with the application on the papers without conducting a hearing.

Statutory framework

[4] Section 225 of the Act provides:

“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.”

[5] Section 226 of the Act provides:

“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.”

Consideration

[6] The Agreement reached its nominal expiry date on 31 March 2018. 2 The Applicant has standing to make the application because, pursuant to s 225(c) of the Act, it is an employee organisation covered by the Agreement. Accordingly, the jurisdictional prerequisites for the making of an application under s 225 of the Act are satisfied.

Section 226(a) – public interest

[7] The Applicant contends that it is not contrary to the public interest to terminate the Agreement for the following reasons:

•  Some terms and conditions of employment under the Agreement have fallen below the minimum terms and conditions of the General Retail Industry Award 2010 (GRIA).

•  Increases in the rates of pay under the Agreement have not kept up with the rate of increases in the GRIA, so that over time, the buy-out of penalty rates has been absorbed. As a consequence, the base rate of pay under the Agreement no longer compensates for lower penalty rates in the Agreement for work performed in the evening, Saturdays and Sundays, when compared to the GRIA.

•  As a consequence of paragraph (b) above, some employees under the Agreement suffer a disadvantage when compared with the rates of pay and terms and conditions of employment under the GRIA (depending upon their hours of work).

•  The Employer has committed to ensuring that no employees will be financially disadvantaged as a result of reverting to the GRIA.

[8] The notion of public interest refers to matters that might affect the public as a whole, and is distinct in nature from the interests of the parties. 3 There is nothing before me which raises public interest considerations that might militate against termination of the Agreement, such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards.4 Based on the material filed with the Commission, I am satisfied that termination of the Agreement is not contrary to the public interest.

Section 226(b) – appropriate to terminate the Agreement

[9] The task required of the Commission under s 226(b) was considered by Deputy President Gostencnik in Allen & O'Brien Pty Ltd T/A O'Brien Electrical Services: 5

“All of the circumstances also need to be taken into account in considering whether termination of the Agreement is appropriate. In particular, the views of employers, employees and employee organisations covered by the Agreement, their circumstances, and the impact of termination need to be taken into account. The requirement in s.226(b) to take into account all of the circumstances, including those set out in s.226(b)(i) and (ii), is a requirement to take the matters into account and to give them due weight in assessing whether it is appropriate to terminate an enterprise agreement. In assessing appropriateness by taking into account all of the circumstances, it is appropriate to approach the task by reference to the construction of s.226 and the contextual matters that bear upon that construction as well as giving specific consideration to the matters identified in s.226(b)(i) and (ii).”

(citations omitted)

[10] In respect of s 226(b)(i) of the Act:

•  The views of the employees covered by the Agreement were sought by the Commission, but no responses were received.

•  The Employer’s views were sought. While no response was received, the application is said to have been made with the support of the Employer. 6

•  The Applicant wishes to terminate the Agreement on the basis that it would have a beneficial effect on the terms and conditions of employment of the employees covered by the Agreement.

[11] In respect of s 226(b)(ii) of the Act, the Applicant submits that should the Agreement be terminated, the terms and conditions of the employees covered by the Agreement would be governed by the GRIA. The Applicant filed with the Commission a document which compares entitlements between the Agreement and the GRIA in respect of the following matters:

•  Alterations to a part-time employee’s roster upon the provision of notice;

•  Conversion of casual employment;

•  Allowances (specifically the laundry allowance, transfer of employment reimbursement, transport reimbursement, recall allowance, higher duties and the Broken Hill allowance);

•  Annual leave loading;

•  Penalty rates; and

•  Rostering principles.

[12] The Applicant submits that the Agreement either does not contain the above entitlements, or the Agreement contains an inferior entitlement when compared to the GRIA. It says that this leaves employees at a significant disadvantage when their current entitlements under the Agreement are compared to the GRIA. Accordingly, the Applicant contends that reverting to the GRIA would have a beneficial impact on the terms and conditions applicable to the relevant employees.

[13] No submissions were made by the Employer in relation to its circumstances including the likely effect the termination would have upon it.

[14] Taking into account the material before me as to the considerations relevant to s 226(b) of the Act, I consider that it is appropriate to terminate the Agreement.

Conclusion

[15] Given my findings in respect of ss 225 and 226(a) and (b) of the Act, I must terminate the Agreement. The termination will operate from 18 June 2019.

DEPUTY PRESIDENT

 1   Form F24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date, at 2.1; email from SDA dated 27 May 2019.

 2   Clause 1.1(b) of the Agreement and [2014] FWCA 5075 at [15].

 3   See Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34.

 4 Ibid at [23].

 5   [2016] FWCA 1906 at [22].

 6   above n 1.

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