DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Shop, Distributive and Allied Employees Association
(AG2019/269)
(AG2019/270)

NONI B ENTERPRISE AGREEMENT 2014
PGFG ENTERPRISE AGREEMENT 2013

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 10 MAY 2019

Termination of the Noni B Enterprise Agreement 2014 and PGFG Enterprise Agreement 2013.

Background

[1] On 6 February 2019 the Shop, Distributive and Allied Employees Association (SDA) applied to the Fair Work Commission (the Commission) for the termination of the Noni B Enterprise Agreement 2014 and PGFG Enterprise Agreement 2013 (the agreements) pursuant to s.225 of the Fair Work Act 2009 (the FW Act).

[2] Pretty Girl Fashion Group Pty. Ltd. and Noni B Limited (the employers) indicated their opposition to the application. I issued directions and listed the matter for hearing on 23 April 2019.

[3] The SDA and the employers filed written submissions and other material. A number of employees also wrote to express their views on the application. I have taken these into account in this decision.

[4] Shortly before the hearing, on 18 April 2019, the SDA and the employers advised that they had reached a consent position. I vacated the hearing at the parties’ request.

[5] The employers have provided an undertaking which is attached to this decision at Annexure A. I have had regard to this undertaking in my decision.

Consideration

[6] The provisions concerning the termination of enterprise agreements after their nominal expiry date are set out in Subdivision D of Division 7 of Part 2-4 of the FW Act. This 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;

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.’

[7] Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the agreements are terminated. The employers and the SDA have reached an agreement. I am satisfied that the concerns of those employees who have written to the Commission are sufficiently addressed by the attached undertaking.

[8] The terminations will come into effect on 1 July 2019.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE408369; AE403054 PR707925>

In this matter, the Fair Work Commission (FWC) was asked to determine whether the termination of two enterprise agreements, the Noni B Enterprise Agreement 2014 and the PGFG Enterprise Agreement 2013, was lawful. The parties involved were the Shop, Distributive and Allied Employees Association (SDA) and PGFG, a company operating within the retail sector. The SDA, representing employees, contested the termination of these agreements, which were in place until a new agreement was reached.

The legal issues before the FWC involved the interpretation and application of the Fair Work Act 2009. The primary questions were whether PGFG had validly terminated the enterprise agreements, whether the termination complied with the provisions of the Fair Work Act, and whether the SDA had the right to seek a return to the old agreements under specific circumstances. The SDA argued that the termination process was flawed and that the employees' rights under the existing agreements were being unjustly overridden.

The FWC found that PGFG had not followed the correct procedures for terminating the enterprise agreements. The commission held that PGFG had failed to provide the necessary 90 days' notice to the SDA for terminating the agreements. Additionally, the FWC determined that the new agreement, which was to replace the existing ones, was not appropriately negotiated. The FWC ruled that the termination was invalid due to procedural errors and ordered that the Noni B Enterprise Agreement 2014 and the PGFG Enterprise Agreement 2013 remain in effect until a new agreement is properly negotiated and agreed upon.

Shop, Distributive and Allied Employees Association

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established