Tegan Tedd

[2022] FWC 1144

[2022] FWC 1144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Tegan Tedd

(AG2021/9111)

MECCA COSMETICA ENTERPRISE AGREEMENT (NSW) 2006

Retail industry
DEPUTY PRESIDENT CROSS	SYDNEY, 23 MAY 2022

Application for termination of the MECCA COSMETICA ENTERPRISE AGREEMENT (NSW) 2006

1. An application has been made pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) by Tegan Tedd (the Applicant) to terminate the MECCA Cosmetica Enterprise Agreement (NSW) 2006 (the Agreement). The nominal expiry date of the Agreement is 19 January 2009.

1. Sections 225 and 226 of the Act provide:

“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.”

Consideration

1. The Applicant is an employee covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date of 19 January 2009.

1. The Employer covered by the Agreement, MECCA Brands Pty Ltd (MECCA), wished to be heard on the termination date. This having occurred, MECCA consents to the Agreement being terminated, provided that the termination takes effect on 11 July 2022. MECCA submits that this time is necessary to enable it to take steps to give effect to the termination of the Agreement.

1. The Agreement does not cover any employee organisation.

1. The matter was listed for Conference and Directions Hearing to take place on 21 March 2022. It was noted at the Conference and Directions Hearing that there is a statutory obligation for the Commission to give employees covered by the Agreement an opportunity to make their views known.

1. The Respondent was directed to draft a form of words explaining in plain English the effect of the termination and its impact on employees. The Applicant and her representative, the Shop, Distributive and Allied Employees’ Association (the SDA), were given an opportunity to make their views known in this regard. This having taken place; employees were provided with the plain English explanation on 22 April 2022 and were directed to make their views known to my Chambers by email within 7 days.

1. As required by s.226 of the Act, MECCA invited those of its employees who are covered by the Agreement to convey their views regarding the application to the Commission. Two employees covered by the agreement provided their views to my Chambers, and I have considered these views.

Determination

1. Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. I consider that it is not contrary to the public interest to terminate the Agreement.

1. Pursuant to s.226 of the Act, the Agreement is terminated. The termination will come into effect on 11 July 2022.

DEPUTY PRESIDENT

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