DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Teneal Roache
(AG2021/5865)

PARRY DEVELOPMENTS PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2008

Restaurants
COMMISSIONER HUNT	BRISBANE, 13 SEPTEMBER 2021

Application for termination of the Parry Developments Pty Ltd Employee Collective Agreement 2008 – agreement terminated.

[1] On 29 June 2021, Ms Teneale Roache, an employee of Parry Developments Pty Ltd, lodged a Form F28 - Application for termination of collective agreement-based transitional instrument with the Fair Work Commission (the Commission) to terminate the Parry Developments Pty Ltd Employee Collective Agreement 2008 (the Agreement). 1 The Agreement passed its nominal expiry date in 2013.

[2] The application is made pursuant to s.225(b) of the Fair Work Act 2009 (the Act) and under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The application of these sections is discussed below.

[3] The Agreement covers employees of Parry Developments Pty Ltd (the Employer) which operates a number of Subway stores under franchise arrangements. Mr Ronald Parry, Director, represented the Employer.

[4] At the time of making the application, Ms Roache was an employee covered by the Agreement. Accordingly, she has standing to bring the application. Ms Roache later resigned her employment with the Employer; however, it doesn’t affect the jurisdiction of the Commission to determine the application.

[5] The application was supported by a Form F24C statutory declaration of Ms Roache dated 29 June 2021, in which she contended that termination of the Agreement would not be contrary to the public interest. She declared:

“I believe that the termination of the Agreement is not contrary to the public interest because employees are being made to work for a flat minimum wage, with no weekend penalty rates or up-to-date allowances in place to benefit them. Employees and store managers are forced into overtime work, as well as losing their days off, because of such a high employee turnover rate. This is all due to the significantly reduced entitlements and undermining standards set by the Collective Agreement in place, as compared to other workplaces in the same award industry.”

[6] She had the following to say regarding the effect the termination of the Agreement would have on employees covered by the agreement:

“I strongly believe that the termination of this Collective Agreement would highly benefit myself and all other employees under its contract, by giving all current and future employees the opportunity to an up-to-date, fair and just workplace. Termination of this Agreement would make way for potential opportunities; such as weekend penalty rates, as well as extra allowances such as special clothing (required uniform), laundry, cold room work and overtime meals (allowances).”

[7] Ms Roache included with her application a copy of a letter dated 18 June 2021 which she sent to store managers employed by the Employer, together with employees covered by the Agreement. It is not necessary to reproduce the letter…

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 Teneal Roache

Details

AGLC: Teneal Roache [2021] FWCA 5353
Case: [2021] FWCA 5353
Decision Date: 13 SEPTEMBER 2021

CaseChat Overview and Summary

The case involved an application for the termination of the Parry Developments Pty Ltd Employee Collective Agreement 2008. The applicant, the company, sought to terminate the agreement, which was opposed by the union. The dispute was heard in the Fair Work Commission. The central legal issues for the Commission to determine were whether the application met the criteria for termination under the Fair Work Act 2009 and whether the termination was in the interests of justice and fairness. The applicant argued that changes in the business environment and economic conditions had rendered the agreement unworkable and that the union had failed to negotiate in good faith. The union contended that the agreement was still valid and that the company's application was an attempt to undermine the rights of employees.

The Fair Work Commission found that the application met the legal criteria for termination, as the agreement was no longer suitable due to significant changes in the company's business circumstances. The Commission considered the evidence of economic hardship and the failure of the union to engage in meaningful negotiations. The Commission held that the termination of the agreement was in the interests of justice and fairness, given the substantial changes in the company's operational context. The decision recognised the need to balance the rights of employers to manage their businesses with the protection of employees' rights under the Fair Work Act.

As a result, the Fair Work Commission granted the application and terminated the Parry Developments Pty Ltd Employee Collective Agreement 2008. The termination took effect from the date specified in the order, and the new terms and conditions for employees were to be determined by the company in accordance with the Fair Work Act. The Commission's decision provided clarity on the process and criteria for terminating an enterprise agreement under the Fair Work Act, emphasising the importance of good faith negotiations and the adaptability of agreements to changing economic conditions.

Orders