DECISION

Fair Work Act 2009
s.532 - Application for an FWC Order

Shop, Distributive and Allied Employees Association
v
DS OPCO Pty Ltd t/a Harris Scarfe
(C2019/7582)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 17 DECEMBER 2019

Application for orders under s 532 – alleged failure to notify and consult in respect of decision to dismiss 15 or more employees – no relevant decision – application dismissed

[1] This decision concerns an application made under s 532 of the Fair Work Act 2009 (Act) by the Shop, Distributive and Allied Employees Association (SDA). The application seeks an order from the Commission directed against DS OPCO Pty Ltd, which trades as Harris Scarfe, in connection with alleged non-compliance by the company with the requirements of ss 531(2) and 531(3) of the Act.

[2] In its application, the SDA stated that the company did not notify the union or employees about the appointment of administrators on 11 December 2019, or about the termination of 15 or more employees for reasons of an economic nature, which the SDA described as the likely consequence of that appointment. The application also stated that the appointment of administrators was a major workplace change which was likely to have a significant effect on employees of the company whose employment is covered by the Harris Scarfe Enterprise Agreement 2017 (Agreement), and that the SDA, an organisation covered by the Agreement, was not consulted about the implications of the decision to appoint administrators.

[3] Section 531(1) of the Act states that the Commission may make an order under s 532(1) if it is satisfied that an employer has decided to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, and the employer has not complied with the notification and consultation requirements in ss 531(2) and (3).

[4] The application did not identify any decision taken by the company to dismiss 15 or more employees. I raised this matter at a telephone mention on 13 December 2019. The SDA said that it was not aware of such a decision having been taken. The company confirmed that no such decision had been taken. I advised the parties that the Commission has no power to make orders under s 532 unless an employer has made a decision of the kind referred to in s 531(1)(a).

[5] There is no evidence of the company having made a decision to dismiss employees. The company says that no such decision has been made. I would note that the appointment of administrators does not involve any necessary or likely implications as to the ongoing employment of employees. As I am not satisfied that the company has made a decision of the relevant kind, I have no power to make the order sought in the application. There can also be no question of the company having failed to comply with the notice and consultation requirements in ss 531(2) and (3).

[6] Finally, I would point out that an order under s 532 would be directed at compliance with the statutory notice and consultation requirements, rather than compliance with the terms of the Agreement. Any applicable notice and consultation obligations in the Agreement would need to be separately complied with.

[7] The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by the Shop, Distributive and Allied Employees Association against DS OpCo Pty Ltd trading as Harris Scarfe. The Association alleged that Harris Scarfe had failed to comply with its obligations to notify and consult with the employees’ representative prior to making a decision to dismiss 15 or more employees. The Commission was tasked with determining whether a relevant decision had been made and, if so, whether the employer had failed to notify and consult as required under the Fair Work Act 2009.

The legal issues that arose in this matter centred on the interpretation and application of sections 528 and 532 of the Fair Work Act 2009. The primary question for the Commission was whether the decision to dismiss the employees constituted a 'relevant decision' under the Act, and if so, whether the employer had breached its obligation to notify and consult with the employees' representative. Additionally, the Commission needed to determine the appropriate remedy if it found that a breach had occurred.

The Commission held that no relevant decision had been made by Harris Scarfe. The employer's actions were not considered to be a decision to dismiss employees for reasons other than redundancy, as per section 528(1)(b) of the Fair Work Act 2009. Consequently, the employer had no obligation to notify and consult with the employees' representative. The Commission found that the application did not meet the threshold for establishing a relevant decision and, therefore, dismissed the application. As a result, no orders were made in favour of the applicant.

Shop, Distributive and Allied Employees Association v DS OpCo Pty Ltd t/a Harris Scarfe

DECISION

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