Super Retail Group Services Pty Ltd

Case •

[2024] FWCA 2964

•

12 AUGUST 2024
[2024] FWCA 2964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Super Retail Group Services Pty Ltd

(AG2024/2513)

SUPER RETAIL GROUP ENTERPRISE AGREEMENT 2018

Retail industry

COMMISSIONER MATHESON

SYDNEY, 12 AUGUST 2024

Application for termination of the Super Retail Group Enterprise Agreement 2018

  1. On 5 July 2024, Super Retail Group Services Pty Ltd (Applicant) made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Super Retail Group Enterprise Agreement 2018 (Agreement).

  1. The Agreement is a single enterprise agreement. It was approved by Deputy President Lake on 7 February 2020.[1]

  1. The nominal expiry date of the Agreement is 7 February 2024.

Legislation

  1. The relevant provisions of the Act are as follows:

“220  Employers may request employees to approve a proposed termination of an enterprise agreement

(1)An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2)Before making the request, the employer must:

(a)    take all reasonable steps to notify the employees of the following:

(i)  the time and place at which the vote will occur;

(ii)  the voting method that will be used; and

(b)  give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3)Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221  When termination of an enterprise agreement is agreed to

Single‑enterprise agreement

(1)If the employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

222  Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1)If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2)The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)The application must be made:

(a)    within 14 days after the termination is agreed to; or

(b)    if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223  When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a)    the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b)   the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c)    the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d)    the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224  When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Consideration – s.222 of the Act

Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?

  1. Clause 2 of the Agreement provides that the parties to the Agreement are:

  • Super Cheap Auto Pty Ltd;
  • SRG Leisure Retail Pty Ltd;
  • Super Retail Group Services Pty Ltd; and
  • Rebel Sport Limited.

  1. Having considered the materials before me, I am satisfied that the Application was made by an employer covered by the Agreement and that the Applicant has standing to make the Application.

Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?

  1. The Application is accompanied by a ‘Form F24A – declaration in support of termination of an enterprise agreement’ (Form F24A). I am satisfied that the Application is accompanied by the material required by the Fair Work Commission Rules 2013 and that the requirements of s.222(2) of the Act have been met.

Has the Application been made within the required timeframe per s.222(3)(a)?

  1. Section 222(3) of the Act sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or, if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows.

  1. It is declared in the Form F24A that the termination was agreed on 21 June 2024.

  1. The Commission’s records show the Application was filed on 5 July 2024, within 14 days after the termination was agreed.

  1. I am satisfied that the requirements of s.222(3) of the Act have been met.

Consideration – s.223 of the Act

  1. I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.

Section 220(2) of the Act

  1. Section 223(a) requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.

Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?

  1. It is declared in the Form F24A that on 17 June 2024 that employees were informed of the voting process and that links to an anonymous online survey would be sent on 21 June 2024 to the employees’ email addresses.

  1. Having considered the materials before me, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify the employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.

Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?

  1. This Application impacts 5 employees who do not fall within the coverage of the Super Retail Group Retail & CCC Enterprise Agreement 2024 (2024 Agreement) that was made to replace the Agreement. It is declared in the Form F24A that:

  • Line managers of the impacted employees briefed them the week commencing 4 March 2024 when the access period for the 2024 Agreement commenced and informed them that their roles would not be covered by the 2024 Agreement and that if the Agreement was terminated they would be aligned to the Clerks – Private Sector Award 2020 (Award) but would be offered the same pay increase as those employees under the 2024 Agreement, together with a one off payment.
  • On 17 June 2024 the employees’ line manager, together with a representative from Human Resources, explained that:
    • the Agreement would be superseded by the 2024 Agreement with the exception of the five impacted employees;
    • this was because they did not perform roles directly associated with the Applicant’s retail or customer care centre operations;
    • the Applicant proposed to terminate the Agreement which would result in the Award applying to the impacted employees;
    • as a part of the transition to the Award the employees would be offered the same 6.95% increase to base pay from 14 July 2024 and a one off payment of 2.75%;
    • a vote would be held online by an online anonymous ballot on 21 June 2024 for the employees to vote on whether they agreed to terminate the Agreement.

  1. Having considered the materials before me, I am satisfied that the Applicant has given employees a reasonable opportunity to decide whether they want to approve the proposed termination. 

Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?

  1. Section 223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.

  1. It is declared in the Form F24A that there were five employees covered by the Agreement, all of which cast a valid vote and voted to approve the termination of the Agreement.

  1. Having considered the materials before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.

Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

  1. There was an initial issue raised in relation to the application concerning the name of the Applicant and the Applicant subsequently applied for a correction to the application documents which were subsequently made by the Commission to reflect the correct legal name of the Applicant. On 25 July 2024 the Applicant was directed to send a copy of Directions made by the Commission to its employees covered by the Agreement, relevant employee organisations (if any) and the other employers covered by the Agreement and file a statutory declaration confirming compliance. The Applicant filed a statutory declaration in accordance with the Commission’s Directions. The Directions required parties who opposed the termination of the Agreement to file in the Commission any submissions, written statements and other documents they rely upon in opposition to the termination of the Agreement. The Directions also stated that if any party sought a hearing, then such request should be made along with the filing of materials objecting to the Application.

  1. No objections were raised in relation to the Application.

  1. I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)

  1. The Shop, Distributive and Allied Employees Association is a bargaining representative covered by the Agreement. On 7 August 2024 the Shop, Distributive and Allied Employees Association confirmed via email that it did not oppose the termination of the Agreement and in reaching its view relies on the material filed by the Applicant, including correspondence the Applicant has provided to the Commission, in relation to the matter.  

Conclusion

  1. Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.

  1. No submissions in opposition were filed.

  1. Section 224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.

  1. In accordance with s.224 of the Act, the termination will come into effect from 12 August 2024.

  1. An Order to this effect has been issued concurrently with this decision.


COMMISSIONER


[1] [[2020] FWCA 665].

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