PR598470 - Decision - 11 Dec 2017

[2017] FWCA 6533
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.225—Enterprise agreement

Sussan Corporation
(AG2017/4790)

SUSSAN SUPERANNUATION FUND AGREEMENT 1998

Retail industry

DEPUTY PRESIDENT CLANCY

MELBOURNE,11 DECEMBER 2017

Application for termination of the Sussan Superannuation Fund Agreement 1998.

[1] On 13 October 2017,Sussan Corporation (Aust) Pty Ltd (Sussan) filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Sussan Superannuation Fund Agreement 1998 (the Agreement). Clause four of the Agreement provides that it applies to employees in respect to the matter of superannuation only.

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date,stipulated to be three years from the date on which the Agreement was approved by the Australian Industrial Relations Commission.

[3] Item 16,Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) states that Subdivision D of Division 7 of Part 2-4 of the Act applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date.

[4] I am satisfied that the Agreement can therefore be terminated by an application under s.225 of the Act.

[5] To avoid any confusion,any requirement in relation to the correct form to be used under the Fair Work Commission Rules 2013 is waived. I am satisfied the application as submitted is satisfactory and accompanied by appropriate supporting documents pursuant to the Act.

[6] The Act relevantly provides 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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226,the termination operates from the day specified in the decision to terminate the agreement.”

[7] Accompanying the Application was a statutory declaration made by Ms Robyn Batson,Group People &Development Manager. Ms Batson submitted that termination of the Agreement would not be contrary to the public interest because:

  it would not impact on the achievement or otherwise of the objects of the Act or of the objects of Part 2-4 of the Act;

  it will not affect the maintenance of proper industrial standards as employees currently covered by the Agreement will be covered by the General Retail Industry Award 2010 1 and relevant superannuation guarantee legislation;

it will not result in the reduction of overall employment entitlements of employees who are currently covered by the Agreement. Employees currently covered by the Agreement will continue,absent any action from them,to have their superannuation contributions made to the Retail Employees Superannuation Trust (REST);

employees currently covered by the Agreement will be afforded the opportunity to choose a different superannuation fund;

  it will not have any detrimental impact,or result in a shift in bargaining power,in relation to enterprise bargaining as Sussan and the union covered by the Agreement have agreed not to bargain for a new enterprise agreement;and

  it will not have any detrimental impact on employment levels within Sussan’s business.

[8] Ms Batson also submitted that the effect of terminating the Agreement would be obtaining the benefit of a more satisfied workforce by offering choice of superannuation fund.

[9] On 19 October 2017,Directions were sent to Sussan’s representative which required the employer to provide the Directions,the Application and statutory declaration made by Ms Batson to the Shop,Distributive and Allied Employees Association (the SDA) and to make reasonable arrangements to either provide a copy of the documents to all employees covered by the Agreement or to display a copy of the documents in all the workplaces covered by the Agreement. Those steps were to be completed by close of business on 2 November 2017 and it was confirmed by Sussan’s representative that the direction had been complied with. The Directions noted that any party who opposed the Application or wished to be heard was to advise my chambers by close of business on 16 November 2017. No advice or objection was received from any employee.

[10] On 4 December 2017,the SDA confirmed with my chambers it does not oppose,or wish to be heard,in relation to the Application.

[11] I am satisfied Sussan is eligible to apply to the Fair Work Commission for the termination of the Agreement under s.225(a) of the Act.

[12] In having regard to the requirements of s.226 of the Act and the material before me,I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate taking into account all the circumstances.

[13] In accordance with s.227 of the Act,the termination will take effect from 11 December 2017.


DEPUTY PRESIDENT

 1  MA000004.

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About this document
(1)
Code:
PR598470
Title:
PR598470 - Decision - 11 Dec 2017
Effective:
11 Dec 2017
Updated:
15 Dec 2017
Related Information
1.0.11.0 SD