The Athlete’s Foot Australia P/L

[2013] FWCA 9351

FAIR WORK COMMISSION

DECISION

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

The Athlete’s Foot Australia P/L
(AG2013/11134)

THE ATHLETES FOOT WORKPLACE AGREEMENT 2006

Retail industry
COMMISSIONER BULL	SYDNEY, 5 DECEMBER 2013

Application to terminate The Athletes Foot Australia Workplace Agreement 2006.

[1] The Athlete’s Foot Australia Pty Ltd (the Applicant) has made an application pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (FW Act) as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate The Athletes Foot Australia Workplace Agreement 2006 (the Agreement).

[2] The Agreement has a nominal expiry date of 8 January 2012 and is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] Schedule 3, Item 16(1) of the Transitional Act states:

Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[4] Section 225 of the FW Act states:

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 FWA 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.

[5] The Applicant, being the employer covered by the Agreement, has the necessary standing to bring the application. It is also clear that the Agreement has passed its nominal expiry date.

[6] Section 226 of the FW Act sets out the requirements to be met before the Tribunal can terminate an agreement where an application is made under s.225.

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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] On 7 November 2013, correspondence was sent to the Applicant requesting further correspondence with respect to s.226 of the Act. In particular, the Applicant was requested to demonstrate that by terminating the Agreement it is not contrary to the public interest, the views of the employees, employer and any employee organisations and the circumstances of the employees, employer and any employee organisation, including the likely effect the termination of this Agreement would have on each of them.

[8] On 15 November 2013, the Applicant sent correspondence with respect to the Commission’s request for further information.

[9] In its correspondence, the Applicant states that the wages provided for in the Agreement have expired and as a result, the Applicant has been paying the rates of pay in the General Retail Industry Award 2010 (the Award), as those rates of pay are more favourable when compared to the Agreement.

[10] The Applicant states that there are no employee organisations that are covered by the Agreement.

[11] The Applicant submits that it has spoken to the employees with respect to this application and has confirmed that 30 employees are covered by this Agreement.

[12] Attached to the Applicant’s correspondence were two employee statements made in support of the application to demonstrate the effect that the termination of the Agreement will have on them.

[13] The first statement was by Mr Oliver Thomas, Store Manager who is covered by the Agreement. Mr Thomas states that he has been asked to consider the effect of terminating the Agreement. Mr Thomas submits that after receiving the Agreement and the Award, it is his opinion that employees would be better off on the Award given the provision of additional penalty rates.

[14] The second statement that was filed in support of the application was by Mr Oliver Woolrych, Sales Assistant who is covered by the Agreement. Mr Woolrych states that he has been recently employed by the Applicant and that he is employed under the terms and conditions from the Award. Mr Woolrych submits that he has reviewed the Agreement and can see that if the Applicant was to enforce the Agreement rates of pay that it would be detrimental to the employees.

[15] Taking into consideration the views of the employees as expressed in their statements, and the views of the Applicant, being the employer, I am satisfied that the requirements of s.226 of the FW Act have been met including that termination of the Agreement is not contrary to the public interest.

[16] The application to terminate the Agreement is approved.

[17] In accordance with s.227 of the FW Act, the Agreement is terminated with effect from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Athlete’s Foot Australia Pty Ltd applied to the Fair Work Commission to terminate the Workplace Agreement 2006, which was entered into under section 170CC of the Fair Work Act 2009. The application sought the termination of the agreement on the grounds that it had become redundant, given the significant changes in the Fair Work Act and the introduction of the National Employment Standards. The dispute centred around the enforceability and relevance of the agreement in light of these legislative changes.

The central legal issue before the Commission was whether the Workplace Agreement 2006 had indeed become redundant and should therefore be terminated. The Commission needed to assess the compatibility of the agreement with the current legislative framework and the extent to which the agreement still provided a benefit to the employees. The case also required the Commission to determine whether any transitional provisions or alternative arrangements could be applied to maintain the integrity of the agreement without undermining the protections afforded by the new standards.

In rendering its decision, the Commission considered the evolution of the Fair Work Act and the introduction of the National Employment Standards, which now provided a comprehensive set of minimum entitlements. The Commission concluded that the Workplace Agreement 2006 did not offer any additional benefits to employees beyond those guaranteed under the National Employment Standards and, as such, had become redundant. The Commission found that terminating the agreement was necessary to ensure compliance with the updated legislative requirements and to avoid any potential legal ambiguities that could arise from the coexistence of the old agreement and the new standards.

The Fair Work Commission granted the application to terminate the Workplace Agreement 2006, effective from the date of the decision. The termination was deemed necessary to align with the current legislative framework and to safeguard the rights and entitlements of the employees under the Fair Work Act. The decision also emphasised the importance of keeping workplace agreements current and relevant to the evolving industrial relations landscape.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established