SST GROUP Pty Ltd T/A 7-Eleven Clontarf

[2021] FWCA 3262

[2021] FWCA 3262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

SST GROUP Pty Ltd T/A 7-Eleven Clontarf
(AG2021/5088)

7-ELEVEN CLONTARF ENTERPRISE AGREEMENT 2015

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 7 JUNE 2021

Application for termination of the 7-Eleven Clontarf Enterprise Agreement 2015.

[1] On 12 May 2021, SST GROUP Pty Ltd T/A 7-Eleven Clontarf (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the 7-Eleven Clontarf Enterprise Agreement 2015 (the Agreement). The nominal expiry date of the Agreement is 1 May 2019.

[2] No employee organisations (unions) are covered by the Agreement.

[3] The application was supported by a statutory declaration from Pravesh Tomar, Director of the Employer which declared, amongst other things, that there are 11 employees covered by the Agreement. If the Agreement is terminated, it is understood those employees’ terms and conditions of employment would be governed by the Vehicle Repair, Services and Retail Award 2020 (the Award).

[4] On allocation to my chambers, I directed the Employer to file supplementary information comparing the key entitlements for employees provided by the Agreement versus the Award.

[5] On receipt of the supplementary information, I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 28 May 2021, I received confirmation from the Employer that it had complied with the above direction. The employees covered by the Agreement were invited to provide any views relevant to the application. I did not receive any correspondence from any of the employees to my chambers by 7 June 2021.

Termination of an enterprise agreement after its nominal expiry date

[6] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which are as follows:

“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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[7] Based on the material contained in the statutory declaration of Pravesh Tomar, and in consideration of s.226(a) of the Act, I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] There are 11 employees covered by the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

[9] In consideration of the material before me relevant to s.226(b)(i) and (ii) of the Act, it is clear that if the Agreement is terminated, some entitlements greater than that contained within the Award will be lost to employees. For example, the Agreement provides for five weeks’ annual leave per annum, and a minimum of three hours per engagement, as against two hours in the Award.

[10] However, there are a number of entitlements within the Award that are greater than those contained within the Agreement. For example, shift penalties, payment for public holidays and allowances are greater under the Award terms.

[11] Having taken into account the circumstances of the employees and the likely effect that the termination will have on the employees, together with the Employer’s desire to terminate the Agreement, I consider that it is appropriate to terminate the Agreement.

[12] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[13] The termination will take effect from 14 June 2021 to allow some time for the necessary administrative arrangements to be put in place to give effect to this decision.

COMMISSIONER

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