Timothy Mcerlane - [2023] FWC 1033

[2023] FWC 1033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Timothy Mcerlane

(AG2022/4879)

OPTUS RETAIL AGREEMENT 2013

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 30 MAY 2023

Application for termination of the Optus Retail Agreement 2013

An application was filed by the Shop, Distributive and Allied Employees’ Association (SDA), on behalf of Mr Timothy Mcerlane, seeking the termination of the Optus Retail Agreement 2013[1] (the Agreement) pursuant to s.225 of the Fair Act 2009 (the Act). The Agreement is a single enterprise agreement and has passed its nominal expiry date of January 2017.

The employer party to the Agreement is Optus Retailco Pty Limited (the Employer). On 23 November 2022, a copy of the Form F24B, the Form F24C statutory declaration made by the SDA’s Gerard Andrew Dwyer, and a comparison document directed at the Agreement and the General Retail Industry Award 2020 (the Comparison Document) were sent to the Employer.

Legislation

Section 225 of the Act provides as follows:

“225Application 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.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 has amended s.226 of the Act. The amendments took effect from 7 December 2022 and relevantly provide:

“226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer…

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.

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Details

AGLC: Timothy Mcerlane [2023] FWC 1033
Case: [2023] FWC 1033
Decision Date: 30 MAY 2023

CaseChat Overview and Summary

The case involved Timothy McErlane who sought to terminate his retail agreement with Optus in accordance with the Optus Retail Agreement 2013. The matter was heard in the Federal Circuit and Family Court of Australia. McErlane argued that Optus had breached the terms of the agreement, thereby entitling him to terminate the contract without penalty. Optus, on the other hand, contended that McErlane had not provided valid grounds for terminating the agreement as per the contract terms.

The court was required to determine whether McErlane had valid grounds to terminate his contract with Optus under the Optus Retail Agreement 2013. This involved interpreting the terms of the contract and assessing whether McErlane's actions and circumstances met the criteria for contract termination as outlined in the agreement. Additionally, the court needed to consider whether Optus had breached any terms that would justify McErlane's claim for termination.

In its decision, the court examined the terms of the Optus Retail Agreement 2013 and the specific provisions related to contract termination. The court found that McErlane had not provided sufficient evidence to support his claim that Optus had breached the contract terms. Consequently, the court ruled that McErlane was not entitled to terminate the contract without incurring penalties. The court concluded that there were no valid grounds under the agreement for McErlane to terminate the contract and dismissed his application for termination.

The court's final order was that McErlane's application to terminate the Optus Retail Agreement 2013 was dismissed, and he was not entitled to terminate the contract without incurring penalties as per the agreement terms.

Orders