Shop, Distributive and Allied Employees Association

[2017] FWCA 6163

[2017] FWCA 6163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Shop, Distributive and Allied Employees Association
(AG2017/4644)

2009 NAMBUCCA RIVER CO-OPERATIVE SOCIETY LIMITED ENTERPRISE AGREEMENT

Retail industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 22 NOVEMBER 2017

Application for termination of the 2009 Nambucca River Co-operative Society Limited Enterprise Agreement.

[1] On 5 October 2017, the Shop, Distributive & Allied Employees’ Association (SDA) applied to the Fair Work Commission (the Commission) for the termination of the 2009 Nambucca River Co-operative Society Limited Enterprise Agreement (the Agreement) pursuant to s. 225 of the Fair Work Act 2009 (the Act). The nominal expiry date of the Agreement was 15 February 2014.

[2] The application was made on the basis that numerous terms and conditions of the Agreement have fallen below the minimum terms and conditions of the relevant award, the General Retail Industry Award 2010 (the Award). The SDA submitted that employees covered by the Agreement suffer a disadvantage when compared with the conditions of the Award.

[3] The SDA submitted that it was contrary to the public interest for an enterprise agreement that has passed its nominal expiry date to fall below this safety net.

[4] The Nambucca River Co-operative Society Ltd (Nambucca Co-operative) does not oppose the termination of the Agreement. It concedes that there are various entitlements contained in the Agreement that fall below the Award. However for ‘completeness’ it notes there are a number of entitlements that remain higher than the Award. However the Nambucca Co-operative does not make any comment regarding whether it is in the public interest to terminate the Agreement.

[5] I note that s. 226 of the Act provides as follows:

“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.”

[6] I issued Directions for submissions to be filed and requiring Nambucca Co-operative to provide a copy of the Directions to employees covered by the agreement. Those Directions stated that if any employee opposed the application, advice should be provided to my chambers by no later than 10 November 2017. No such advice has been received.

[7] In the circumstances, I am satisfied that significant conditions in the Agreement, including penalty rates, numerous allowances and the amount of casual loading have fallen below the Award. Having taken into account the views of Nambucca Co-operative and the SDA I consider that I must terminate the Agreement. I am satisfied that it is not contrary to the public interest to do so.

[8] SDA did not make submissions in respect of the date of operation of the termination. However Nambucca Co-operative submitted that the termination of the Agreement would place a significant administrative burden on it in the process of transitioning to the Award, including in relation to reviewing rostering practices, operational systems, payroll processes and time and attendance systems. Nambucca Co-operative also noted that a particularly busy time of the year for trading is approaching, and submitted that the termination should operate from the first pay period in February 2018.

[9] Although I accept that the termination of the Agreement may cause some administrative difficulties for Nambucca-Co-operative, in circumstances where the Agreement has fallen below the award in a number of significant respects, I do not consider that a period of almost three months’ before termination takes effect is reasonable. I consider a period of approximately six weeks, even considering the difficulties of the Christmas period, should allow for the changes required to be made.

[10] Pursuant to s. 227 of the Act, the termination will come into effect from 31 December 2017.

DEPUTY PRESIDENT

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