The Trustee for the A A McMullen Family Trust T/A McMullen Holdings Pty Ltd

[2013] FWCA 6566

[2013] FWCA 6566

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

The Trustee for the A A McMullen Family Trust T/A McMullen Holdings Pty Ltd
(AG2013/7869)

MC MULLEN HOLDINGS COLLECTIVE AGREEMENT

Retail industry
COMMISSIONER SPENCER	BRISBANE, 10 SEPTEMBER 2013

Application for termination of the McMullen Holdings Collective Agreement.

[1] The Trustee for the A A McMullen Family Trust T/A McMullen Holdings Pty Ltd (the Applicant) has made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s.225 of the Fair Work Act 2009 (the Act) to terminate the MC MULLEN HOLDINGS COLLECTIVE AGREEMENT 1 (the Agreement).

[2] The Agreement has a nominal expiry date of 14 March 2013 and is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[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] Item 16 of Schedule 3 of the Transitional Act provides, so far as presently relevant, that:

“Collective agreement-based transitional instruments: termination by 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.”

[5] The application to terminate the Agreement was lodged on 1 August 2013. The Commission issued Directions to the Applicant on 5 August 2013 to file material in reference to s.226 of the Act (set out above).

[6] The Applicant filed materials in accordance with these Directions.

Consideration

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[7] The Applicant submitted that as the Employer covered by the Agreement it was their view that the Agreement should be terminated.

[8] The Applicant submitted a document being in the form of a petition signed by employees of the Applicant. That document identified that as employees of the Applicant to whom the Agreement applied that the employees agreed the application and the Directions had been brought to their attention. The petition further advised that the employees view was that they were also of the view that the Agreement should be terminated. This document was signed by 6 persons. The Applicant confirmed that this was all the employees of the Applicant.

[9] There are no employee organisations covered by the Agreement.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[10] The Respondent submitted that termination of the Agreement would have no effect in that employees covered by the Agreement are paid “under” the General Retail Award. The effect of this, so it was submitted, was that employees would continue to be paid under the General Retail Award (being the relevant Modern Award which covers the Applicant and their employees), and that there would be no change in entitlements or conditions of employees as a result.

[11] The employee document confirmed that employees were aware that the termination of the Agreement would have no actual effect on their employment. The signatory employees also confirmed that they are aware that despite the existence of the Agreement they are paid “in accordance” with the Award.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[12] The Respondent submitted that there was nothing within their knowledge that would be contrary to the public interest in the termination of the Agreement.

[13] On the material it can be seen that this Agreement is relatively old, does not provide for significant terms and conditions of employment and is in many respects inferior to the relevant Modern Award. This Agreement was made under the former Workplace Relations Act 1996 (Cth) and in accordance with the relevant tests for approval at that time.

Conclusion

[14] The Commission is satisfied that an application for the termination of an enterprise agreement has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[15] The Commission is satisfied that it is not contrary to the public interest to order the termination of the Agreement. The employees will revert to the Award.

[16] The Commission is satisfied that it is appropriate in all the circumstances and having considered the views of the Applicant and the employees and the circumstances of the Applicant and the employees.

[17] Having considered the material and s.226 of the Act the Agreement must be terminated.

[18] The termination will operate from the date of this decision.

[19] I Order accordingly.

COMMISSIONER

 1 AC313473.

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<Price code A, AC313473  PR541262>