[2018] FWC 1282

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

FOOTLONG SUBS EMPLOYMENT SERVICES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

Application for termination of the Footlong Subs Employment Services Pty Ltd Employee Collective Agreement 2007 - jurisdictional objection - applicant has ceased employment - statutory declaration made by union - jurisdictional objection dismissed

[1] This decision relates to a jurisdictional objection raised by Footlong Subs Employment Services Pty Ltd (company) to an application made by Ms Simone Lennox on 4 December 2017 under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act). The application seeks to terminate the Footlong Subs Employment Services Pty Ltd Employee Collective Agreement 2007 (Agreement).

[2] Ms Lennox is represented by the Shop, Distributive and Allied Employees' Association (SDA), an organisation of which she is a member. The company is represented by its solicitor, in accordance with my decision to grant permission under s.596.[1]

[3] The Agreement is an instrument that was made under the Workplace Relations Act 1996 and passed its nominal expiry date in 2012. It is a 'collective agreement-based transitional instrument' for the purposes of Item 16 of Schedule 3 of the TPCA Act. The effect of this item is that the termination of agreement provisions found in Subdivision D of Division 7, Part 2-4 of the Fair Work Act 2009 (FW Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. In short, an application may be made to terminate the Agreement under s.225 of the FW Act.

[4] Section 225 of the FW Act provides:

'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;

(c) an employee organisation covered by the agreement.'

[5] Section 226 of the FW Act provides:

'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.'

[6] Ms Julia Fox, National Assistant Secretary of the SDA, provided a statutory declaration in support of Ms Lennox's application. Among other things, she stated that the terms and conditions provided in the Agreement had fallen below the minimum terms and conditions of the _Fast Food Industry Award 2010 (_Award).

[7] In correspondence to my chambers on 27 December 2017, Mr Berenblum, a director of the company, advised that Ms Lennox had resigned from her employment on 13 December 2017, effective on 9 January 2018. He requested that the Commission dismiss the application for want of jurisdiction. In reply, the SDA submitted that Ms Lennox's application was valid because she was an employee covered by the Agreement at the time she filed her application.

[8] On 8 February 2018, the company's representative sent correspondence to my chambers seeking to have its jurisdictional objection dealt with as a threshold issue. It submitted that the applicant had no standing to continue its application because she was no longer covered by the Agreement, and that her application had not been properly made, because it was accompanied by a statutory declaration made by an official of the SDA, rather than a statutory declaration made by the applicant herself.

[9] I conducted a telephone mention on 14 February 2018, following which I issued directions that the company file and serve any further submissions in support of its jurisdictional objection by Monday 19 February 2018, and that Ms Lennox file any submissions in reply by Monday 26 February 2018. The parties complied with these directions and requested that I determine the jurisdictional objection based on the materials filed.

[10] The company's initial contention was that the Commission had no jurisdiction to deal with the matter because Ms Lennox had ceased employment with the company. It submitted that it was no answer to its jurisdictional objection that Ms Lennox was an employee at the time the application was filed. She ceased to be an employee of the company on 9 January 2018 and from that time she was no longer covered by the agreement that she sought to terminate. The company's contention was that the words 'apply' and 'application' used in sections 225 and 226 of the FW Act do not connote only the filing of an application, but rather encompass the substantive prosecution of the application; and that once Ms Lennox ceased to be an employee, she ceased to have any standing to continue with the application.

[11] However, in its written submissions, the company stated that it had taken note of the decision of Deputy President Bull in Lorena Menchon v Landrex Pty Ltd,[2] which I raised at the telephone mention, and that it did not press its contention that the fact Ms Lennox was no longer an employee of the company deprives her application of a jurisdictional basis.

[12] This concession is properly made. Section 225 states that an employee covered by an enterprise agreement may apply to terminate it. It does not say or imply anything about the employee having to remain employed after the application is made. Indeed section 225 is concerned only with making an application under s.225. How the Commission must then deal with such an application is addressed in s.226. This provides that 'if an application has been made', the Commission must terminate the agreement if it is satisfied that it is not contrary to the public interest to do so, and the Commission considers it appropriate to terminate the agreement in all the circumstances. Section 226 makes no reference to the applicant. Its premise is that an application has been made under s.225. Section 226(b) requires the Commission to take into account the views of 'the employees', employers and organisations covered by the agreement, and the circumstances of those persons. No reference is made to the views of the applicant.

[13] There is no textual basis for the proposition that the Commission cannot deal with an application made under s.225 of the FW Act after an applicant ceases to be employed by the relevant employer. This contention reads into sections 225 and 226 words that are not there. The fact that the applicant is no longer employed by the company and is not now covered by the Agreement does not affect the validity of her application. In this regard, I concur with the views expressed by DP Bull in Menchon v Landrex Pty Ltd.

[14] The company's original correspondence to the Commission raised a related contention, namely that the person or entity that makes the application under s.225 must also be the one to prosecute it, and that Ms Lennox could not leave her matter in the hands of the SDA. The company's written submissions do not refer to this contention. However, there is nothing to suggest to me that Ms Lennox is not prosecuting her application. She participated in the mention of 14 February 2018, together with the SDA, of which she is a member. The factual premise of the contention is not made out. In my view, Ms Lennox continues to agitate her application.

[15] Ms Lennox's application was supported by a statutory declaration. It was sworn by Ms Julia Fox, an SDA office-holder, rather than Ms Lennox.

[16] The company submits that in order for an application under s.225 to be validly made, it must be accompanied by a statutory declaration from the actual applicant, who has the actual interest in the subject matter of the application. This is so, it argues, because the statutory declaration goes to establishing the standing of the person or entity that made the application.

[17] In my view, the fact that Ms Lennox's application was supported by a statutory declaration from an SDA office-holder, rather than a statutory declaration sworn by her, does not render her application under s.225 invalid.

[18] First, there is no statutory requirement for an applicant to file a statutory declaration in support of an application under s.225. By contrast, an application for approval of an enterprise agreement under s.185 'must be accompanied by a signed copy of the agreement and any declarations that are required by the procedural rules' (s.185(2)). In the case of s.225, any requirement that an application be supported by a statutory declaration is a function of the rules, rather than one mandated by the FW Act.

[19] Of course, the rules themselves have a statutory underpinning. Pursuant to s.609, the President is empowered to make procedural rules by legislative instrument in relation to the 'practice and procedure to be followed' by the Commission, and the 'conduct of business in relation to matters allowed or required to be dealt with' by the Commission. These include 'the requirements for making an application to the FWC' (s.609(2)(a)).

[20] However, rule 6 states that the Commission may dispense with compliance with any provision in the rules, either before or after the occasion for compliance arises. Further, the Commission may, under rule 6(2), make an order that is inconsistent with the rules and if it does do, the order will prevail.

[21] What then do the rules require in relation to an application made under s.225? Rule 26 deals with applications to terminate enterprise agreements and collective agreement-based transitional instruments, and sets certain requirements. Rule 26(2) provides:

'An application under section 225 of the Act for termination of an enterprise agreement after its nominal expiry date must be accompanied by a statutory declaration made by an officer or authorised employee of the applicant setting out the basis upon which the Commission can be satisfied that the requirements of section 226 of the Act have been met.

Note 1: The statutory declaration must be in the approved form - see

Note 2: Section 226 of the Act sets out the circumstances in which the

[22] Rule 26(2) commences with words that suggest general reference to any applications under s.225: 'An application under s.225 of the Act for termination of an enterprise agreement after its nominal expiry date must be accompanied by a statutory declaration made by ...' To this point, the reader anticipates that the rule will relate to all applications under s.225. However, the rule goes on to identify the persons who may make the declaration as being an officer or authorised employee of the applicant. As a matter of ordinary language, these words have no relevance to an applicant who is a natural person - except perhaps in the case of an employer who is a natural person and who employs an employee. In the present matter, there is no 'officer or authorised employee' of Ms Lennox. On its terms, the rule simply does not require a natural person who is an employee to make a statutory declaration.

[23] It is possible that this is an oversight, and that the rule was intended to make provision for all applications under s.225 to be supported by statutory declarations, and then to identify who may make a declaration in the case of corporate applicants. There is no apparent reason why a statutory declaration would be required from corporate applicants but not from natural persons. Further, the form prescribed by rule 8(2) for the making of a statutory declaration (the F24C) contemplates that it can be used by an individual applicant. It states on its first page that it is to be used if 'you are a party to an enterprise agreement (an employer, employee, or an employee organisation ...)'. In other cases that have come before the Commission relating to individual applicants under s.225, statutory declarations have been made by the employee-applicant, including, as the company points out, in the Menchon case.

[24] Be that as it made, the position remains that rule 26(2), on its plain reading, does not impose on Ms Lennox any obligation to make a statutory declaration. Nor does it require her to have the SDA or anyone else make a statutory declaration on her behalf. She has not failed to comply with any requirement of the rule.

[25] If the rule were to be read as requiring an employee-applicant to make a statutory declaration, such an interpretation would rely on an implication. The words 'the applicant or' would, effectively, need to be read into the text of the rule immediately after the words 'made by'. The company's objection to the validity of the application is that Ms Lennox failed to perceive this implication, and that her application must therefore fail. In my view, this would be an instance where the Commission could, and should, dispense with any requirement of the rules, pursuant to rule 6; it would be just and reasonable to do so. However, in my opinion, it is not necessary for me to dispense with the requirements of the rules, as no relevant requirement has been ignored.

[26] For completeness, it should be noted that s.586 of the FW Act empowers the Commission to allow a correction or amendment to any application or other document relating to a matter before it, on terms it considers appropriate, and to waive an irregularity in the 'form or manner' in which an application is made to the Commission. However, I do not consider it necessary to use my power under the section. There is no error or irregularity.

[27] I note the company's contention that a statutory declaration serves the purpose of identifying a person's standing to make the application. This is an important consideration. An application would not be validly made if the applicant were not one of the identified persons or bodies set out in s.225. However, the identity of the applicant in this matter has been established, as has her standing to make the application: she was 'an employee covered by the agreement' when the application was made (s.225(b)).

[28] I have reviewed Ms Lennox's application in light of the submissions of the parties, and the provisions of the FW Act and the rules. I have concluded that Ms Lennox's application to terminate the Agreement was validly made. There is no jurisdictional impediment to the application being heard and determined.

[29] The company's jurisdictional objection to the application is therefore dismissed.

[30] I will shortly issue directions for the further conduct and determination of the application.

Footlong Subs Employment Services Pty Ltd: 19 February 2018

Shop Distributive and Allied Employees' Association, for Ms Lennox: 26 February 2018

[1] Permission was granted during the telephone mention on 14 February 2018

[2] [2015] FWCA 8679 at [12] to [15]

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