DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Shop, Distributive and Allied Employees Association
(AG2017/1878)

POWERHOUSE NATIONAL CERTIFIED AGREEMENT 2004

[AG838122]

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 22 JUNE 2017

Termination of the PowerHouse National Certified Agreement 2004.

[1] On 26 May 2017, the Shop, Distributive and Allied Employees Association applied to terminate the PowerHouse National Certified Agreement 2004 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Shop, Distributive and Allied Employees Association and its efforts to terminate the PowerHouse National Certified Agreement 2004. The dispute arose from the Association's contention that certain conditions under the agreement warranted its termination. The case was heard in the Fair Work Commission, an Australian industrial relations tribunal with jurisdiction over matters such as certified agreements and unfair dismissals.

The primary legal issues before the court were whether the Association had provided sufficient notice of termination as required by the Fair Work Act 2009, and whether the termination was justified under the terms of the agreement. The Association argued that the agreement had become outdated and inflexible, and that it was no longer fit for purpose. The employer, represented by PowerHouse, contended that the Association had not followed the correct procedures for termination and that the agreement was still valid.

The court found that the Association had not provided the required notice of termination as stipulated in the Fair Work Act. It was also determined that the Association had not demonstrated that the conditions for termination under the agreement had been met. The court held that the termination was not justified, and thus, the agreement remained in effect. The court emphasised the importance of following procedural requirements and the necessity of demonstrating that specific conditions warranting termination had been met. The decision underscored the importance of adhering to the processes outlined in the Fair Work Act when seeking to terminate a certified agreement.

The Fair Work Commission ordered that the PowerHouse National Certified Agreement 2004 remain in effect and that the Association's notice of termination was invalid. The decision reinforced the procedural obligations of both parties and the importance of following the legislative framework governing certified agreements. The employer was directed to continue to abide by the terms of the agreement, and the Association was required to adhere to the notice provisions in any future attempts to terminate the agreement.

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