Vision Super Pty Ltd T/A Vision Super

[2016] FWCA 7588

[2016] FWCA 7588

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Vision Super Pty Ltd T/A Vision Super
(AG2016/6130)

VISION SUPER PTY LTD ENTERPRISE AGREEMENT 2013

Banking finance and insurance industry
COMMISSIONER CIRKOVIC	MELBOURNE, 11 NOVEMBER 2016

Application for termination of the Vision Super Pty Ltd Enterprise Agreement 2013.

[1] On 3 October 2016, Vision Super Pty Ltd T/A Vision Super (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) for the termination of the Vision Super Pty Ltd Enterprise Agreement 2013 1 (2013 Agreement).

[2] The 2013 Agreement came into operation on 16 December 2013 with a nominal expiry date of 16 May 2016.

[3] The Applicant filed a statutory declaration of Ms Fiona Fleming, Head of Human Resources of the Applicant, declared 3 October 2016 (Statutory Declaration).

[4] The Australian Municipal, Administrative, Clerical and Services Union (the Union) is the Union covered by the 2013 Agreement. On 19 October 2016, my chambers contacted the Union via email to determine whether they objected to the termination of the 2013 Agreement. On 20 October 2016, Ms Paula Doody, from the Union, informed the Commission that the Union did not object to the termination of the 2013 Agreement.

Legislation

[5] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passes its nominal expiry date. Section 225 is as follows:

“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.”

[6] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is 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.”

Section 58 of the Act

[7] On 20 October 2016, my chambers contacted the Applicant via email querying the utility of the application in light of the fact that pursuant to s.58 of the Act, the 2013 Agreement would ordinarily have ceased to operate, upon the commencement of the Vision Super Pty Ltd Enterprise Agreement 9 – 2016 2(2016 Agreement).

[8] On 20 October 2016, Mr Levin, Partner, Mills Oakley Lawyers, writing on behalf of the Applicant, submitted that:

“… the 2013 Agreement continues to be in operation because it continues to apply to Employees in roles classified above band 4 other than the CEO (Executive Officers and Senior Executive Officers).

The 2013 Agreement was only replaced by the Vision Super Pty Ltd Enterprise Agreement 9 – 2016 (2016 Agreement) to the extent that it covers employees at band 4 and below. Employees who are above band 4 continue to be covered by the 2013 Agreement.” 3

[9] The 2013 Agreement included “All Employees other than the Chief Executive Officer”. The 2016 Agreement includes “All Employees other than the Chief Executive Officer and Employees in roles classified above band 4”. Consequently ‘all employees who are classified above band 4 (Executive Officers and Senior Executive Officers) continue to be covered by the 2013 Agreement, because the 2016 Agreement does not cover them (as per s58 (1)(b)). As such, the 2013 Agreement continues to cover employees classified above band 4’ 4 (original emphasis). For this reason the Applicant has applied to the Commission to terminate the 2013 Agreement.

Consideration

Standing

[10] As the 2013 Agreement has passed its nominal expiry date and the Applicant is the employer covered by the 2013 Agreement, I find that the Applicant has standing to make the application pursuant to s.225(a) of the Act.

Public Interest

[11] In relation to whether the termination of the 2013 Agreement is in the public interest, the Applicant declared in its Statutory Declaration, although lengthily expressed, that it is not contrary to public interest to terminate the 2013 Agreement because:

• The employees who will no longer be covered by an enterprise agreement are the most senior levels of employees at the Applicant immediately below the CEO;



• Executive-level employees currently covered by the 2013 Agreement represent a small percentage of the Applicant’s total number of employees (12%);



• Lower level employees, including middle management, will continued to be agreement-covered under the 2016 Agreement;



• The Applicant has offered all executive-level employees who are covered by the 2013 Agreement, detailed common law individual employment contracts which confirm their terms and conditions of employment, so that their terms and conditions of employment are set in advance of the termination of the 2013 Agreement. 5

[12] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the 2013 Agreement pursuant to s.226(a) of the Act, on the basis of the material before the Commission.

Views, Circumstances and Likely Effect of Termination

[13] The Applicant ticked ‘Yes’ in its Statutory Declaration in response to the question ‘are there any employees covered by the agreement?’. Further, the Applicant declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

• On 6 June 2016, the Applicant wrote to the remaining executive-level employees who will not be covered by the 2016 Agreement in an effort to consult with them and notified them that:




“a. Vision Super had been in bargaining for the 2016 Agreement and the voting period would commence on Friday 10 June; and

b. The 2016 Agreement would not cover them; and

c. Vision Super proposed to apply to terminate the 2013 Agreement and offer the Executives individual employment contracts instead.” 6;

• The CEO and Head of HR held informal individual discussions with several executives;



• Nine of the 12 executive-level employees covered by the 2013 Agreement signed a petition in favour of terminating the 2013 Agreement (two executive-level employees were on leave and one was interstate).

[14] The Applicant further declares that:

• Terminating the 2013 Agreement will not affect the vast majority of the Applicant’s employees because all employees below executive-level continue to be covered under the 2016 Agreement;



• All executive-level employees have now been provided with detailed common law contracts of employment. This will create efficiencies for the Applicant such as ‘benchmarking remuneration for senior/specialist roles against the external market’ 7;



• Executive-level employees are protected from any significant effects as a result of no longer being covered by an enterprise agreement;



• The Union does not object to the Applicant’s application and ‘the change to coverage under the 2016 Agreement was agreed during the bargaining process’ 8 and once the 2013 Agreement is terminated the Union will have a continued role in the workplace in respect of the Applicant’s employees covered by the 2016 Agreement.

[15] On the basis of the material before the Commission, I consider that it is appropriate to terminate the 2013 Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[16] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the 2013 Agreement, that I am satisfied that it is not contrary to public interest to terminate the 2013 Agreement and I consider that it is appropriate to terminate the 2013 Agreement taking into account all the circumstances. Accordingly, the 2013 Agreement must be terminated pursuant to s.226 of the Act.

[17] An Order 9 will be issued terminating the Vision Super Pty Ltd Enterprise Agreement 2013 with effect from 11 November 2016.

COMMISSIONER

 1   AE405796.

 2   AE420010.

 3   Email from R Levin to the Commission dated 20 October 2016.

 4   Ibid.

 5 F24C Statutory Declaration of Fiona Fleming dated 3 October 2016, p.2.

 6   Ibid p.3.

 7   Ibid p.3.

 8   Ibid p.4.

 9   PR587443.

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<Price code A, AE405796  PR586677>