Target Australia Pty Ltd T/A Target Australia

[2017] FWCA 2185

[2017] FWCA 2185

The attached document wholly replaces the document previously issued with the code [[2017] FWC 2141] on 18 April 2017.

Associate to Commissioner Roe

Dated 18 April 2017

[2017] FWCA 2185

FAIR WORK COMMISSION

DECISION

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

Target Australia Pty Ltd T/A Target Australia
(AG2016/6847)

TARGET AUSTRALIA PTY LTD ADMINISTRATIVE EMPLOYEES AGREEMENT 2014

Clerical industry
COMMISSIONER ROE	MELBOURNE, 18 APRIL 2017

Application for termination of the Target Australia Pty Ltd Administrative Employees Agreement 2014.

[1] The Application to terminate this Agreement has been made by Target, the employer covered by the Target Australia Pty Ltd Administrative Employees Agreement 2014 (the Agreement). The nominal expiry date of the Agreement was 16 October 2016.

[2] I am satisfied that Target is able to make the application and that the pre-requisites for the application as set out in Section 225 of the Fair Work Act 2009 are met.

[3] The Application was initially opposed by the Australian Municipal, Administrative, Clerical and Services Union (ASU). The ASU was a bargaining representative for the Agreement and is noted as covered by the Agreement. The ASU disputed the adequacy of the process of consultation with the ASU and the employees concerning the proposed termination of the Agreement. Target agreed to conduct a further ballot of employees with the involvement of the ASU. The outcome of that ballot was that a majority supported the termination of the Agreement. The ASU then advised that they no longer maintained their objections to the application.

[4] If the Agreement is terminated the Clerks Private Sector Award 2010 will apply to the employer and the employees.

[5] The Agreement covers administrative employees who perform “Head Office” work and who are not employed at or above “management pay range 11”. All employees covered by the Agreement are presently based at the Head Office in Geelong. There are approximately 710 employees who work out of the Head Office. Of those 38 were covered by the Agreement. Of those 38 employees, 25 were casuals.

[6] I am required to consider the following matters:

“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] I am satisfied that the majority of employees and the employer support the application to terminate the Agreement. The ASU is covered by the Agreement and it does not oppose the application.

[8] I am satisfied by the material provided by Target that there will be some benefits to employees if the Agreement is terminated. In particular the casual loading under the Award is better than the casual loading under the Agreement. Target has given undertakings to employees to ensure that the wages and employment conditions of employees will be better off overall should the Agreement be terminated. This includes wage increases and access to an improved redundancy policy. The move from guaranteed wage increases under the Agreement to performance based annual wage review may be an advantage for some employees and a disadvantage for others. There are some other disbenefits in moving from collective agreement protection to award protection. However, on balance I am satisfied that employees will not be significantly disadvantaged by the termination.

[9] I am satisfied by the material provided by Target that there will be some administrative benefits for Target in the termination of the Agreement due to uniform systems operating across the workforce.

[10] Employees will of course retain their rights to seek to bargain for a new agreement if they wish to do so in the future.

[11] It will often be contrary to the public interest to move employees from coverage by a collective Agreement which provides superior conditions and wages to the Award safety net. However, the Act envisages that it will sometimes be in the public interest for this to occur. Given the absence of any current bargaining or majority support determination or good faith bargaining application for a new agreement despite the expiry of the Agreement some six months ago I consider that termination of the Agreement is not contrary to the public interest.

[12] The requirements of Section 226 having been met the Agreement must be terminated.

[13] I consider it appropriate that the termination operate from the date of this decision.

COMMISSIONER

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