DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Soyers IGA Pty Ltd T/A IGA Everyday Devonport (Fourways)
(AG2016/6168)

Tasmania
COMMISSIONER LEE	MELBOURNE, 8 DECEMBER 2016

Application for termination of the Fourways Supermarket Employee Collective Agreement 2008 - 2013.

[1] An application has been made by Soyers IGA Pty Ltd T/A IGA Everyday Devonport (Fourways) (the Applicant) to terminate the Fourways Supermarket Employee Collective Agreement 2008 - 2013 (the Agreement) under section 225 of the Fair Work Act 2009 (the Act).

[2] The Agreement is a single-enterprise agreement and has a nominal expiry date of 20 March 2008.

[3] The matter for determination is whether or not to grant the application to terminate the Agreement.

Background to the application

[4] This application was lodged with the Fair Work Commission (the Commission) on 4 October 2016. The employer’s statutory declaration filed with the application contained information relevant to the views of the employer and employees, the likely effect of the termination on the employer and employees and matters which make the termination of the Agreement not contrary to public interest.

[5] On 11 November 2016 my chambers wrote to the Applicant setting out the requirements of the legislation and directed the Applicant to take the following action to enable me to obtain information on the views and circumstances of employees.

“The views and circumstances of employees are to be obtained by the employer immediately forwarding or handing to employee and posting on relevant notice boards the following notice;

An application has been made by the employer to terminate the Fourways Supermarket Employee Collective Agreement 2008 - 2013 (The agreement).

The matter has been allocated to Commissioner Lee of the Fair Work Commission for determination.

If the application to terminate the agreement issuccessful, your minimum employment entitlements will be regulated by the applicable modern award. Your employer has advised the Commission that the applicable modern award is the General Retail Industry Award 2010.

This may have an effect on your terms and conditions of employment.
Commissioner Lee, when determining whether to terminate the agreement, is required to take into account the views of employees covered by the agreement.

If you have any views about the application to terminate the agreement, please advise the Commissioner by email at [email protected] or by calling (03) 8656 4534.

Views are to be provided to the Fair Work Commission by close of business Friday 18 November 2016.

(Note: If you require any information or advice as to what modern award would cover you, you can contact the Fair Work Ombudsman for information at

[6] Once this course of action was followed, I directed the Applicant to provide a statutory declaration, containing advice as to how and when the notice was distributed to employees.

[7] The Applicant provided an affidavit of Mr Johannes Soyer, Store Owner, of Fourways IGA Supermarket dated 21 November 2016 which provided details of how the notice was provided personally to all employees covered by the Agreement and that a copy of the notice was also in the staff break room where it was available to all staff.

[8] My chambers has not received any emails or any phone calls from any employee of the Applicant expressing any view about the application to terminate the agreement despite the distribution of the notice as directed.

The law to be applied

[9] Section 225 of the Act provides:

“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;”

[10] Section 226 of the Act provides

“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.”

[11] The application to terminate the Agreement was made by the employer who is covered by the Agreement, consistent with s.225(a) of the Act.

[12] Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied, in accordance with s.226(a) of the Act, that it is not contrary to the public interest to terminate the Agreement.

[13] In considering whether it is appropriate to terminate the Agreement, I have sought the views of the employees, considered the views of the employer and considered the circumstances, including the likely effect the termination will have on each of them.

[14] The Agreement was made in 2008 and nominally expired in 2013. The rates of pay in the Agreement are lower than the current award rates. The Agreement also provides for loaded rates of pay.

[15] Having considered the terms of the Agreement, I consider that employees will be better off under the terms of the modern award.

[16] Pursuant to s.225 of the Act, I have considered, and am satisfied as to each of the matters contained in s.226 of the Act.

[17] I am satisfied that it is appropriate to approve the termination of the Agreement. Accordingly, the Agreement is terminated.

[18] The termination will come into effect from 8 December 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Soyers IGA Pty Ltd T/A IGA Everyday Devonport (Fourways)

[2016] FWCA 8659

8 DECEMBER 2016

DECISION