The Beechworth Sweet Co Pty Ltd T/A The Beechworth Sweet Co

[2016] FWCA 8676

[2016] FWCA 8676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Beechworth Sweet Co Pty Ltd T/A The Beechworth Sweet Co
(AG2016/5943)

THE BEECHWORTH SWEET CO EMPLOYEE COLLECTIVE AGREEMENT

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 5 DECEMBER 2016

Application for termination of the Beechworth Sweet Co Employee Collective Agreement.

[1] On 22 September 2016, Ms Sally McGregor, Retail Manager of The Beechworth Sweet Co Pty Ltd, filed an application (the application) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Beechworth Sweet Co Employee Collective Agreement (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) states that Subdivision D of Division 7 of Part 2-4 of the Act applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date.

[4] I am satisfied that the Agreement can therefore be terminated by an application under s.225 of the Act.

[5] To avoid any confusion, any requirement in relation to the correct form to be used under the Fair Work Rules 2009 is waived. I am satisfied the application as submitted is satisfactory and accompanied by appropriate supporting documents pursuant to the Act.

[6] The Act relevantly provides as follows:

“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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[7] Accompanying the application was a statutory declaration made by Ms McGregor who said on reviewing staff pay, it became apparent some staff members were disadvantaged under the Agreement. Ms McGregor said in not wanting staff to be worse off than under the relevant Award, the Agreement should be terminated. She noted as the employer, it would cost approximately $15,000 per annum in additional wages if the Agreement was terminated.

[8] On 2 November 2016, Directions were sent to Ms McGregor which required the employer to provide the Directions, the application and statutory declaration made by Ms McGregor to all employees covered by the Agreement by close of business on 16 November 2016. If any party opposed the application, they were directed to advise my chambers by close of business on 30 November 2016. No advice or objection was received.

[9] I am satisfied Ms McGregor is eligible to apply to the Fair Work Commission for the termination of the Agreement under s.225(a) of the Act.

[10] In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate taking into account all the circumstances.

[11] In accordance with s.227 of the Act, the termination will take effect from 5 December 2016.

DEPUTY PRESIDENT

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