TRUSTEES OF THE DAUGHTERS OF SAINT PAUL

[2015] FWCA 279

[2015] FWCA 279

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

TRUSTEES OF THE DAUGHTERS OF SAINT PAUL
(AG2014/10746)

TRUSTEES OF THE DAUGHTERS OF ST PAUL EMPLOYEE COLLECTIVE AGREEMENT 17 APRIL 2009 AND 6 JULY 2009

Retail industry
COMMISSIONER BULL	SYDNEY, 13 JANUARY 2015

Application for termination of the TRUSTEES OF THE DAUGHTERS OF ST PAUL EMPLOYEE COLLECTIVE AGREEMENT 17 APRIL 2009 AND 6 JULY 2009.

[1] An application has been made by Trustees of the Daughters of Saint Paul (the applicant) pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Trustees of the Daughters of St Paul Employee Collective Agreement 17 April 2009 (Agreement ID AC328931) and the Trustees of the Daughters of St Paul Employee Collective Agreement 6 July 2009 (Agreement ID AC326330) (The Agreements) .

[2] The Agreements are collective agreement-based transitional instruments as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] Schedule 3, Item 16(1) of the Transitional Act states:

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.

[4] Section 225 of the 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 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.

[5] The applicant, being the employer covered by the Agreements, has the necessary standing to bring the application. The Agreements have passed their nominal expiry date of 17 April 2012 and 6 July 2012.

[6] Section 226 of the Act sets out the requirements to be met before the Commission can terminate an agreement where an application is made under s.225.

226 When FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.

[7] A statutory declaration and witness statement accompanied the application lodged on 9 December 2014. With respect to s.226 of the Act, the applicant addressed the public interest, the views of the employees and the circumstances of the employees, including the likely effect the termination of the Agreements would have on each of them.

[8] The applicant provided comparative documents and calculations that demonstrate employees are better off overall under the relevant modern awards.

[9] In the applicant’s statutory declaration, it stated that it had advised each of the employees with respect to the termination of the Agreements, and in particular that employees would be better off under the General Retail Industry Award 2010, Journalists Published Media Award 2010, and the Clerks Private Sector Award 2010, being the relevant awards that will now apply. No objection from any employee was raised.

[10] I note that there are no employee organisations that are covered by the Agreements.

[11] Taking into consideration the process that was followed by the applicant in explaining the application and process to the employees and that no objection from the employees has been raised and the views of the applicant, I am satisfied that the requirements of s.226 of the Act have been met including that termination of the Agreements is not contrary to the public interest.

[12] The application to terminate the Agreements is approved.

[13] In accordance with s.227 of the Act, the Agreements are terminated with effect from the date of this decision.

COMMISSIONER

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<Price code A, AC326330  PR559975>