Stallards Photographic Unit Trust T/A Stallards Camera House

[2021] FWCA 4564

[2021] FWCA 4564

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Stallards Photographic Unit Trust T/A Stallards Camera House
(AG2021/5938)

STALLARDS CAMERA HOUSE EMPLOYEE COLLECTIVE AGREEMENT 2009

Retail industry
COMMISSIONER LEE	MELBOURNE, 28 JULY 2021

Application for termination of the Stallards Collective Agreement 2009.

[1] This decision concerns an application made by Stallards Photographic Unit Trust T/A Stallards Camera House (the Applicant) for the termination of the Stallards Camera House Employee Collective Agreement 2009 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act) and Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date. The employer covered by the Agreement has made and is entitled to make application to the Fair Work Commission to terminate the Agreement.

[3] Item 16 of Schedule 3 to the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] 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;

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

[5] Section 226 of the Fair Work Act 2009 (the Act) sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act:

“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.”

[6] Mr Mark Stallard (Owner of Stallards Camera House) provided a signed declaration which states as follows:

“I have submitted form f28 to apply for the termination of the Stallards Camera House Employee Collective Agreement 2009.

The intention of terminating this agreement is to move to the General Retail Industry Award.

The reasons for changing to the General Retail Award include:

a) The age of the existing collective agreement, including the fact it has past the expiry date

b) Change of ownership of the business

c) Interest from employees in the General Retail Industry Award.

After discussions with all employees their feelings are positive about this change.

No employee will be disadvantaged by the award change.”

(per original)

[7] On 7 July 2021, my chambers wrote to the Applicant directing them to take action to enable me to obtain information in relation to the views and circumstances of employees. Specifically, they were directed to provide to the employees covered by the Agreement a notice (the Notice) in the following terms, as well as providing me with a statutory declaration outlining the steps the employers took to make the Notice available to employees:

“An application has been made by Stallards Photographic Unit Trust T/A Stallards Camera House to terminate the Stallards Collective Agreement 2009 (the Agreement).

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

If the application to terminate the Agreementis successful, your minimum employment entitlements will be regulated by the General Retail Industry Award 2020.

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 [phone]. Views are to be provided to the Fair Work Commission by no later than 4.00pm on Friday, 16 July 2021.”

Once this course of action is followed, the Commissioner asks that the employer provides in writing details of the action it took to make the Notice available to employees in a statutory declaration.

The Commissioner has asked that a statutory declaration including the above information please be provided as soon as possible but by no later than 4.00pm on Monday, 12 July 2021.”

[8] On 9 July 2021, I received a statutory declaration declared by Mr Stallard on behalf of the Applicant. The statutory declaration states that the Notice was handed out to the employees.

[9] No further views were received from or on behalf of any party.

[10] It is apparent from an assessment of the terms of the Agreement that they are inferior in many respects to the conditions in the relevant Award, being the General Retail Industry Award 2020 (the Award). In particular, adjustments in the rates of pay in the Award mean that the rates of pay in the Award exceed those in the Agreement.

[11] Having regard to the above, 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. I am also satisfied, in accordance with s.226(b) that it is appropriate to terminate the Agreement having regard to the circumstances of the employees, employers and organisations covered by the Agreement, including the likely effect that the termination will have on each of them. I am therefore required under s.226 of the Act to terminate the Agreement.

[12] In accordance with s.226 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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