Shop, Distributive and Allied Employees Association-Western Australian Branch

[2019] FWCA 7060

[2019] FWCA 7060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Shop, Distributive and Allied Employees Association-Western Australian Branch
(AG2019/2438)

FILLIES AND MARES AND SDA AGREEMENT 2009

Retail industry
DEPUTY PRESIDENT BINET	PERTH, 15 OCTOBER 2019

Application for termination of the Fillies and Mares and SDA Agreement 2009.

[1] The Shop, Distributive and Allied Employees Association-Western Australian Branch (SDA)has made an application (Application) to the Fair Work Commission (FWC) to terminate the Fillies and Mares and SDA Agreement 2009 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 1 February 2013.

[3] The parties to the Agreement are Jindabyne Pty Ltd trading for the Daly Family Trust (Jindabyne) and the employees of Jindabyne who are employed in the classifications set out in Clause 6 of the Agreement (Employees).

[4] The SDA is covered by the Agreement.

[5] Section 225 of the FW Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[6] Section 226 of the FW Act states:

“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.”

[7] In support of the Application, the SDA filed a statutory declaration by Mr Benjamin Alick Harris (Harris Declaration). The Harris Declaration states that the parties, including the SDA, do not intend to renegotiate the expired Agreement. The SDA contends that the Agreement would not pass the better off overall test if currently applied against the General Retail Industry Award (GRIA) and it is in the public interest to terminate the Agreement so that retail employees covered under the Agreement receive, as a minimum, the relevant minimum terms and conditions as prescribed by the GRIA.

[8] On 17 July 2019, Directions were issued with respect to the Application (Directions). The SDA was directed to file inter alia an outline of submissions as to why the Agreement should be terminated which addresses the requirements of section 226 of the FW Act and any evidence on which SDA seeks to rely in support of the Application by 25 July 2019.

[9] Jindabyne was directed to file inter alia an outline of submissions in response to the Application and any evidence on which Jindabyne seeks to rely, including but not limited to: whether Jindabyne supports or opposes the Application; what the effect of the termination of the Agreement would be on the Jindabyne; and whether it is contrary to the public interest to terminate the Agreement, by 1 August 2019.

[10] On 22 July 2019 Mr Daly, Director of Jindabyne, requested an adjournment of the Directions until after 14 September 2019. By reply email and noting that the FWC has an obligation to hear and determine matters expeditiously, Jindabyne were invited to provide evidence in support of its application to amend the Directions and the SDA was invited to provide its view on amending the Directions.

[11] On 23 July the SDA filed submissions in compliance with the Directions.

[12] On 26 July 2019 Chambers received a Form F53 from the Master Grocers Association (MGA), informing Chambers it was representing Jindabyne.

[13] On 1 August 2019 MGA filed material on behalf of Jindabyne. Those materials stated inter alia that Jindabyne does not oppose the Application. MGA requested that the termination of the Agreement become effective on 4 October 2019. Submissions were made supporting such a date.

[14] On 6 August 2019 further directions were issued to the parties (Further Directions). The Further Directions invited the SDA to make submissions with respect to the proposed termination date. The Directions also required Jindabyne to provide a copy of the Application, all materials filed in accordance with the Directions and Further Directions, the Harris Declaration and the Directions and Further Directions to all employees covered by the Agreement, and to file with the FWC a statutory declaration confirming that the Further Directions had been complied with. The Further Directions contained an invitation for any Employee who wished to be heard with respect to the Application to contact the FWC by close of business on 29 August 2019.

[15] A statutory declaration was filed with Chambers on 28 August 2019 confirming that the Further Directions had been complied with. However, given the delay in Jindabyne providing the materials to the Employees, an extension was provided to Employees to contact Chambers if they wished to be heard in relation to the Application.

[16] No contact has been made to Chambers with respect to the Application by any Employee as at the date of this decision.

Consideration

[17] As the Agreement has passed its nominal expiry date and the Applicant is a union covered by the Agreement, I find that the SDA has standing to make the Application pursuant to section 225(c) of the FW Act.

[18] Based on the material filed in support of this Application, there is nothing before me that raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the Agreement.

[19] Jindabyne do not oppose the Application. There is no evidence that any Employee opposes the Application. Based on the material filed in support of the Application I am satisfied that it is appropriate to terminate the Agreement.

[20] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in section 226 of the Act, the Agreement is terminated.

[21] The termination will come into effect from 15 October 2019.

DEPUTY PRESIDENT

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