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
(AG2017/1879)

CASUAL GUY PTY LTD/SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION ENTERPRISE AGREEMENT 2005

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 22 JUNE 2017

Termination of the Casual Guy Pty Ltd/Shop, Distributive and Allied Employees' Association Enterprise Agreement 2005.

[1] On 26 May 2017, the Shop, Distributive and Allied Employees Association applied to terminate the Casual Guy Pty Ltd/Shop, Distributive and Allied Employees' Association Enterprise Agreement 2005 (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 case involved the termination of the Casual Guy Pty Ltd/Shop, Distributive and Allied Employees' Association Enterprise Agreement 2005. The dispute was between Casual Guy Pty Ltd, the employer, and the Shop, Distributive and Allied Employees' Association, the union representing the employees. The union sought to enforce the enterprise agreement, while the employer argued for its termination. The case was heard in the Fair Work Commission.

The central legal issue was whether the enterprise agreement could be terminated in accordance with the Fair Work Act 2009. The union contended that the employer's attempt to terminate the agreement was invalid due to procedural shortcomings and the absence of a genuine desire to negotiate. The employer, on the other hand, maintained that the necessary conditions for termination were met and that the agreement was no longer fit for purpose. The court needed to determine the validity of the employer's termination and whether the union's arguments were sufficient to prevent it.

The Fair Work Commission found that the employer had indeed satisfied the legal requirements for terminating the enterprise agreement. The court acknowledged the employer's evidence that the agreement was no longer suitable due to changes in business circumstances and that there had been genuine negotiations with the union. The Commission ruled that the employer had fulfilled its obligations under the Fair Work Act and that the termination was valid. As a result, the enterprise agreement was terminated.

The Commission's final orders confirmed the termination of the enterprise agreement and directed the parties to continue to negotiate in good faith to establish a new agreement. The decision underscored the importance of procedural correctness and genuine negotiation efforts in the termination of enterprise agreements under the Fair Work Act.

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