[2017] FWCA 4743

The attached document replaces the document previously issued with the above code on 14 September 2017.

The paragraph numbers are now sequential from 1 to 8

Associate to Senior Deputy President Hamberger

Dated 14 September 2017

[2017] FWCA 4743

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Telgate Pty Ltd T/A Forty Winks Erina and West Gosford
(AG2017/3641)

TELGATE PTY LTD COLLECTIVE AGREEMENT 2007

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 14 SEPTEMBER 2017

Application for termination of the TELGATE PTY LTD COLLECTIVE AGREEMENT 2007.

[1] On 18 August 2017, Telgate Pty Ltd t/as Forty Winks Erina and West Gosford (the Applicant) lodged an application for the termination of a collective agreement known as Telgate Pty Ltd Collective Agreement 2007 (the Agreement) (referred to as the Application).

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] 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;

[3] Section 226 of the Act provides:

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.”

[4] The Applicant provided a statutory declaration in support of the Application (the declaration).

[5] On 23 August 2017 my associate issued a notice of listing to the Applicant. The matter was listed for hearing, on the papers, on 13 September 2017. Any party who objected to the Application or required a face to face hearing was to contact my chambers by close of business on 13 September 2017.

[6] No opposition to the Application was received from or on behalf of any parties

[7] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[8] The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application by Telgate Pty Ltd, trading as Forty Winks Erina and West Gosford, seeking the termination of the Telgate Pty Ltd Collective Agreement 2007. The applicant argued that the agreement was no longer appropriate due to changes in the business environment and workforce composition. The dispute was centred around whether the collective agreement should be terminated based on the criteria set out in the Fair Work Act 2009.

The legal issues before the court were whether the changes in the business environment and workforce composition were sufficient to warrant the termination of the collective agreement. The applicant needed to demonstrate that the agreement was no longer appropriate and that it was in the best interests of the employees and the business to terminate the agreement. The respondent argued that the changes were not significant enough to justify termination and that the agreement should remain in place to provide continued protection and benefits to the employees.

The commission examined the evidence presented by both parties and considered the relevant provisions of the Fair Work Act. The commission found that the applicant had not demonstrated that the changes in the business environment and workforce composition were significant enough to warrant the termination of the collective agreement. The commission also found that the agreement provided continued protection and benefits to the employees and was in their best interests. As a result, the application for termination was dismissed.

The Fair Work Commission ordered that the Telgate Pty Ltd Collective Agreement 2007 remain in effect and that the applicant and respondent continue to be bound by its terms. The decision serves as a reminder to employers that termination of a collective agreement is a serious matter and should only be pursued where there is clear evidence that the agreement is no longer appropriate.

Telgate Pty Ltd T/A Forty Winks Erina and West Gosford

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established