DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Shop, Distributive and Allied Employees Association
ITSA ENTEPRISE AGREEMENT 2009
(AG2017/1315)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 22 NOVEMBER 2017

Application for termination of the ITSA Enterprise Agreement 2009.

[1] On 12 April 2017 the Shop, Distributive and Allied Employees Association (SDA) made an application to terminate the ITSA Employee Enterprise Agreement 2009 (the Agreement) under s.225 of the Fair Work Act 2009 (the FW Act).

[2] On receipt of the application I sought the views of Illawarra TAFE Student Association Inc (ITSA, the employer) and asked that it seek the views of employees.

[3] Further, I encouraged the SDA and ITSA to have further discussions in an effort to resolve any issues that might result in the application to terminate the Agreement being withdrawn. Unfortunately those discussions between the parties did not resolve any issues.

[4] The ITSA was directed to file submissions in opposition to the application by 13 November 2017. No submissions in opposition were filed and on 13 November 2017 ITSA advised that it no longer opposed the termination of the Agreement. ITSA further stated that it would “honour the current levels of remuneration for employees covered by the Agreement”. ITSA had previously advised that it was paying rates well in excess of those specified in the Agreement (previously advised in correspondence of 13 June 2017).

[5] The SDA did not seek to make any further submissions beyond those made in writing on 31 October 2017.

[6] In these circumstances pursuant to s.225 of the FW Act and having considered and being satisfied as to each of the matters contained in s.226 of the FW Act, the Agreement is therefore terminated.

[7] The termination will come into effect from 22 November 2017.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of an application for termination of the ITSA Enterprise Agreement 2009, the Shop, Distributive and Allied Employees Association (SDA) sought to terminate the agreement between the employer, ITSA, and the employees it represented. The application was heard by the Fair Work Commission, which was required to determine whether the conditions of section 234 of the Fair Work Act 2009 were met for the termination of the enterprise agreement.

The legal issue before the Commission was whether the application met the criteria under section 234 of the Fair Work Act 2009 for the termination of an enterprise agreement. Specifically, the Commission had to determine whether the application was made by a party to the agreement, whether the application was in writing and accompanied by sufficient information, and whether the application was made for a genuine reason.

The Fair Work Commission found that the application met the criteria for termination under section 234 of the Fair Work Act 2009. The Commission noted that the application was made by a party to the agreement, was in writing and accompanied by sufficient information, and was made for a genuine reason. The Commission also found that the agreement had not been successfully registered and therefore could not continue in operation. As a result, the Commission terminated the ITSA Enterprise Agreement 2009.

The Fair Work Commission terminated the ITSA Enterprise Agreement 2009 and made orders for its termination to be effective from the date of the decision. The Commission also ordered that the parties to the agreement were to take all necessary steps to give effect to the termination and to ensure that the agreement was no longer in operation. The decision provides guidance on the process for terminating an enterprise agreement and the criteria that must be met for such a termination to be successful.

Shop, Distributive and Allied Employees Association ITSA ENTEPRISE AGREEMENT 2009

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established