Watabe Australia Pty Limited T/A Watabe Wedding

[2018] FWCA 6561

[2018] FWCA 6561

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

Watabe Australia Pty Limited T/A Watabe Wedding
(AG2018/3809)

WATABE WEDDING WORKPLACE AGREEMENT 2006

Retail industry
COMMISSIONER SPENCER	BRISBANE, 24 OCTOBER 2018

Application for termination of the Watabe Wedding Workplace Agreement 2006.

[1] An application pursuant to Sch. 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s.225 of the Fair Work Act 2009 (the FW Act) was made by Watabe Australia Pty Limited T/A Watabe Wedding (the Applicant) to terminate the Watabe Wedding Workplace Agreement 2006 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date.

[3] Pursuant to Sch. 3, Item 16 of theTransitional Act:

“16 Collective agreement-based transitional instruments: termination by the 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.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.

[4] Further, ss.225 and 226 of the FW Act relevantly provide:

“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.

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.”

[5] There are no employee organisations representing the employees of the Applicant. The Applicant was represented by Ms Jennifer Cutler of O’Reilly Stevens Lawyers.

[6] Ms Seiko Suzuki, the General Manager of the Applicant, filed Statutory Declarations in support of the Application. Ms Suzuki stated that at the time the Agreement was made the Applicant employed approximately 50 full time employees and 150 casual employees. Currently, she said, the Applicant has only one full time employee and six casual employees. The Applicant seeks the termination of the Agreement as it is outdated and no longer suits the business purposes and structure of the Applicant. The Statutory Declaration also provided a comparative table of the rates of pay under the Agreement and new rates to be applicable to each employee.

[7] Further submissions were filed by the Applicant’s representative on 30 August 2018, providing emails sent to the casual employees regarding the proposed change and signed acknowledgments by these employees confirming that they have reviewed the information provided by the Applicant and are satisfied with the “pay increase and entitlements”.

[8] Directions were issued on 31 August 2018 requiring that the Applicant provide further information addressing s.226 of the Act. On 3 October 2018, directions were set for the filing of further material, by 15 October 2018, in relation to s.226(b)(ii) of the Act, in particular the circumstances of the affected employees, and any effect that the termination would have on each of them.

[9] The Applicant’s submissions and Affidavits confirmed that:

•  The Agreement’s nominal expiry date has passed;

•  Termination of the Agreement is not contrary to the public interest as staffing requirements have changed since its implementation, and due to it being an old instrument it is outdated. The Applicant submits that termination of the agreement is not inappropriate and would allow for more contemporary conditions to apply;

•  No financial detriment will be suffered by the remaining staff; currently, the Agreement provides for payment of the minimum wage to the employees. The comparison of wage rates set out the rates to be applicable to employees on termination of the Agreement;

•  The views of the employees have been sought, and they have agreed with the proposed termination of the Agreement. Following discussions with employees, no concerns have been raised to date in relation to the application.

[10] Ms Suzuki submitted that the employees were advised of entitlements under the National Employment Standards, and had been consulted regarding the new rates to be paid, and the conditions to cover their employment if the Agreement were terminated. Further, that the employees would have the ability to upskill and be rewarded with more favourable hourly rates of pay.

[11] Taking into account the matters in s.226 of the Act, and in accordance with the above submissions, I am satisfied that it would be appropriate to terminate the Agreement.

[12] An Order [PR701710] to that effect will issue together with this Decision.

COMMISSIONER

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<AC300039  PR701709>