The Trustee for AM & JA Weir Family Trust T/A JR’s Surf & Ski Colonnades

[2020] FWCA 5434

[2020] FWCA 5434

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

The Trustee for AM & JA Weir Family Trust T/A JR’s Surf & Ski Colonnades
(AG2020/2744)

JRS SURF AND SKI COLONNADES RETAIL STAFF COLLECTIVE AGREEMENT

Retail industry
COMMISSIONER HAMPTON	ADELAIDE, 15 OCTOBER 2020

Application for termination of the JRs Surf and Ski Colonnades Retail Staff Collective Agreement.

[1] This decision concerns an application by The Trustee for AM & JA Weir Family Trust T/A JR's Surf & Ski Colonnades pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the JRs Surf and Ski Colonnades Retail Staff Collective Agreement. 1

[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act 2 with a nominal expiry date of 17 June 2014. It applies to retail employees employed at JRs Surf & Ski, Centro Colonnades store, located in Noarlunga in South Australia.

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by the FWC

(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.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 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 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 FWA 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.”

[5] Ms Weir, Manager of the Trustee, assisted by Ms Lockett, participated in the telephone hearing and confirmed to the Commission that:

● The business known as JR Surf and Ski ceased trading under that name in 2014 and is now known as Beaches Apparel. The business has expanded and a second store (located at Seaford) opened in 2013. The Agreement does not apply to the Seaford store as it is owned and operated by a related, but separate, legal entity and the Agreement expressly provides that it covers only the Colonnades store. The General Retail Industry Award 2010 (the Retail Award) applies to the Seaford store;

● The two stores share some common management, administrative and staffing arrangements. The commonality of one single instrument will be beneficial to the business and staff in providing consistency and equity in employment arrangements with staff;

● There has been ongoing communication with the staff in the lead up to this application to take into account their views and circumstances;

● No employee will see a reduction in their pay rate or conditions as a result of the termination. All will, in effect, continue to work and be paid pursuant the applicable Modern Award; being the Retail Award.

[6] Given the status of the Agreement, the applicant Employer is entitled to apply for its termination pursuant to s.225 of the FW Act.

[7] In the lead up to the hearing of this matter, directions were issued requiring the notice of listing issued by the Commission be provided to all staff covered by the Agreement. The notice of listing contained the details for any employee or employee representative to make a contribution about the application. No employee or employee organisation provided a submission or participated in the telephone hearing. I am satisfied that all affected parties support, or at least do not oppose, the application.

[8] I also note that the Agreement was made under a former legislative regime and in the context of a predecessor to the current modern awards established under the FW Act. In that regard, the Retail Award provides significantly more beneficial terms and conditions and has, in effect, been applied by the employer since 2019.

[9] Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the Agreement and that it is appropriate in all of the circumstances, including having regard to the views of, and consequences for, the employer and the employees, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[10] The termination will take effect from on and from 11.59pm on 20 October 2020.

COMMISSIONER

 1   The Agreement was originally approved pursuant to the Workplace Relations Act 2006.

 2 Item 2(5)(c)(i) of Schedule 3.

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