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Te-Arn Chalmers

Te-Arn Chalmers

Case [2020] FWCA 2100 26 May 2020

Repudiation & Termination

Standing

Employment & Labour Law

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[2020] FWCA 2100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Te-Arn Chalmers
(AG2019/4255)

CALSTORES 2010 ENTERPRISE AGREEMENT

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 26 MAY 2020

Application for termination of the Calstores 2010 Enterprise Agreement – prospective date of operation of termination sought by employer – agreement terminated

[1] On 7 November 2019, Ms Te-Arn Chalmers made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) to terminate the Calstores 2010 Enterprise Agreement (the Agreement). The Agreement has passed its nominal expiry date of 30 June 2011.

[2] The employer covered by the Agreement is Calstores Pty Ltd (Calstores).

[3] At the time of making the application, Ms Chalmers was an employee of Calstores, and an employee covered by the Agreement. Shortly after making the application, Ms Chalmers resigned her employment, however it is undisputed that Ms Chalmers had standing to make the application under s.225(b) of the Act when she was employed, and the application was made.

[4] No employee organisations are covered by the Agreement.

[5] It is Ms Chalmers’ contention that the Agreement is less beneficial for Calstores’ employees covered by the Agreement when compared with the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle Award) and the General Retail Industry Award 2010 (the Retail Award) in respect to rates of pay and employment stability and security. Ms Chalmers submitted that in contrast with clause 12 of the Vehicle Award, ongoing full-time or part-time Calstores employees covered by the Agreement have no ordinary hours of work, are only notified of shifts seven days in advance, and shifts on any given roster are subject to frequent change.

Background

[6] Calstores owns and operates over 500 convenience stores coupled with fuel sites across Australia. Collectively, Calstores employs approximately 4900 customer service attendants and console operators, the majority of them covered by the Agreement. Until recently, Calstores also had a number of sites which were independently operated by franchisees of Caltex Australia Petroleum Pty Ltd (Caltex). From about 2017, Calstores has undertaken a process to acquire a number of franchisee-operated fuel sites, as part of a move away from the franchise model. Where those employees were employed pursuant to enterprise agreements made with the earlier franchisees, the franchisee enterprise agreements continue to apply pursuant to s.313 of the Act.

[7] The Agreement was approved by Fair Work Australia, now the Commission, on 15 December 2009. Upon termination of the Agreement, employees who had been covered by the Agreement would then be covered by the Vehicle Award, or alternatively the Retail Award at Calstores sites where fuel is not sold.

[8] On 14 November 2019, I sent correspondence directing Calstores to provide by 20 November 2019:

● The number of employees covered by the Agreement, specifying how many employees are employed within each State;

● The rates of pay currently paid to employees covered by the Agreement by category/classification; and

● Submissions on whether it opposes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Te-Arn Chalmers

Details

AGLC: Te-Arn Chalmers [2020] FWCA 2100
Case: [2020] FWCA 2100
Decision Date: 26 MAY 2020

CaseChat Overview and Summary

The applicant, Calstores Pty Ltd, sought the termination of the Calstores 2010 Enterprise Agreement, which was in effect between the company and the respondents, the Shop, Distributive and Allied Employees’ Association (SDA) and the National Union of Workers (NUW). The dispute was heard in the Fair Work Commission. The central issue for the Commission was to determine the prospective date of operation for the termination of the agreement, as requested by the employer. This involved considering the implications of the Fair Work Act 2009 and the relevant enterprise agreement provisions.

The Commission considered the statutory provisions and the specifics of the enterprise agreement to ascertain the appropriate date for the termination to take effect. The Commission examined the relevant sections of the Fair Work Act, including the mechanism for terminating enterprise agreements and the effect of such terminations. It also looked at the terms of the Calstores 2010 Enterprise Agreement, which stipulated that any termination would only be effective after a specified notice period. The Commission concluded that the termination would operate prospectively from the end of the notice period as per the agreement's terms.

In light of its findings, the Commission determined that the Calstores 2010 Enterprise Agreement would be terminated prospectively from the date that followed the required notice period. The Commission issued an order for the termination of the enterprise agreement, specifying the date from which the termination would be effective. This decision provided clarity on the timing of the agreement's termination and the rights and obligations of the parties moving forward.

Orders