DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

West Australian Newspapers Ltd
(AG2021/4017)

WEST AUSTRALIAN NEWSPAPERS CLERKS (ENTERPRISE BARGAINING) AGREEMENT 2004 AND THE CLERKS’ (WEST AUSTRALIAN) SPECIAL CASUAL EMPLOYEES AGREEMENT.

Journalism
DEPUTY PRESIDENT BINET	PERTH, 16 JUNE 2021

Application for termination of the West Australian Newspapers Clerks (Enterprise Bargaining) Agreement 2004 and the Clerks’ (West Australian) Special Casual Employees Agreement.

[1] West Australian Newspapers Ltd (the West) has made an application (Application) to the Fair Work Commission (FWC), pursuant to Schedule 3 Item 16 of the Fair Work Act 2009 (Cth) (FW Act), to terminate the Clerks’ (West Australian) Special Casual Employees Agreement (AG No. 15 of 1989) (1989 Agreement)and the West Australian Newspapers Clerks (Enterprise Bargaining) Agreement 2004 (Agreement No. 175 of 2004) (2004 Agreement)(collectively the Agreements).

[2] The parties to the 1989 Agreement are the West and employees of the West employed in the following classifications:

a. Classified Booking Clerks

b. Tele-Ad Sales Advisors

c. Classified Re-Keyboarding

d. Classified Complaints

e. Canvassers

[3] The parties to the 2004 Agreement are the West and employees covered by the 1989 Agreement and/or employees engaged in any of the occupations, industries or callings specified in the Clerks (Wholesale and Retail Establishments) Award No.38 of 1947 (Employees).

[4] The Australian Municipal Administrative Clerical and Services Union of Employees, West Australian Clerical and Administrative Branch (ASU) is a party to 2004 Agreement.

[5] The 1989 Agreement past its nominal expiry date on 8 March 1995. The 2004 Agreement past its nominal expiry date on 31 May 2007.

[6] For the purposes of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), the Agreements are Collective Agreement-Based Transitional Instruments. By virtue of Item 16 of Schedule 3 of the Transitional Act, the Agreements may be terminated pursuant to section 226 FW Act.

[7] In support of the Application, The West filed a statutory declaration by Ms Marija Muccilli, the Employee Relations Manager of The West (Muccilli Declaration). The Muccilli Declaration asserts that the Agreement is outdated and unsuitable as The West’s clerical staff are covered by the Clerks (Private Sector) Award 2020, and many of the duties undertaken under the Agreements are no longer types of work performed by The West.

[8] On 8 March 2021, directions were issued with respect to the Application (Directions). The West was directed to file an outline of submissions in support of the Application and any evidence on which they relied by 4pm Thursday 18 March 2021. The ASU were directed to file an outline of submissions in response to the Application as well as any evidence on which the ASU sought to rely on, by 4pm Thursday 15 March 2021.

[9] The Directions also required…

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: West Australian Newspapers Ltd [2021] FWCA 2958
Case: [2021] FWCA 2958
Decision Date: 16 JUNE 2021

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by West Australian Newspapers Ltd to terminate two enterprise agreements: the West Australian Newspapers Clerks (Enterprise Bargaining) Agreement 2004 and the Clerks’ (West Australian) Special Casual Employees Agreement. The dispute arose from disagreements between the employer and the employees over the terms and conditions of employment. The Commission was tasked with determining whether the proposed terminations were justified under the Fair Work Act 2009.

The legal issues centred on whether the employer had provided sufficient evidence to justify the termination of the agreements. The applicant needed to demonstrate that the agreements were no longer appropriate due to substantial changes in the business environment or that they were not in the best interests of the employees. The Commission also needed to consider whether the termination would result in a substantial detriment to the employees and whether there were any alternative methods to address the issues without terminating the agreements.

The Commission found that the employer had not provided sufficient evidence to justify the termination of the agreements. The employer had failed to demonstrate that the agreements were no longer appropriate or that the termination would be in the best interests of the employees. The Commission emphasised the importance of maintaining enterprise agreements as a means of resolving disputes and promoting fair and productive workplace relations. Consequently, the application for termination was dismissed. The Commission ordered that the agreements remain in effect and that the employer and employees continue to negotiate in good faith to address any issues that had arisen.

Orders