Tracey Foley

[2021] FWCA 720

[2021] FWCA 720

FAIR WORK COMMISSION

DECISION

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

Tracey Foley
(AG2021/106)

SMYTHESDALE FOOD AND LIQUOR PTY. LTD. COLLECTIVE AGREEMENT 2006

Retail industry
COMMISSIONER MCKINNON	MELBOURNE, 12 FEBRUARY 2021

Application for termination of the Smythesdale Food and Liquor Pty. Ltd. Collective Agreement 2006.

[1] On 22 January 2021 Tracey Foley (the Applicant) lodged an application pursuant to Sch. 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Smythesdale Food and Liquor Pty. Ltd. Collective Agreement 2006 (‘the Agreement’). The Agreement is a transitional agreement-based instrument under the TPCA that covers Country Grocers (Smythesdale) Pty Ltd and its employees by virtue of a transfer of business from Smythesdale Food and Liquor Pty. Ltd., the original employer covered by the Agreement.

[2] I am satisfied that the Agreement is a collective agreement-based transitional instrument and that its nominal expiry date has passed.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act. By virtue of Schedule 3 to the TCPA Act, this section applies to applications for termination of collective agreement-based transitional instruments as if they were enterprise agreements under the Act. It provides as follows:

“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] The application is supported by the Applicant, her employer Country Grocers (Smythesdale) Pty Ltd and those employees covered by the Agreement who took the opportunity to express their views about whether the Agreement should be terminated.

[5] The effect of terminating the Agreement will be that employees become covered by the modern award. This will give parties certainty and on balance, is likely to result in more favourable terms and conditions of employment. On the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to all the circumstances. These are set out in the Statutory Declaration filed with the application, a Memorandum of Understanding entered into between the employer and the Shop, Distributive and Allied Employees Association, the representative of the employees covered, and email correspondence from the parties.

[6] The Agreement is terminated.

[7] In accordance with section 227 of the Act, termination of the Agreement will operate from 26 February 2021.

COMMISSIONER

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