Employee 'X' takes Godfreys to the cleaners over outdated EA


Employee 'X' takes Godfreys to the cleaners over outdated EA

A mysterious "Employee X" has successfully applied to the Fair Work Commission to terminate an outdated agreement.

A mysterious "Employee X" has successfully applied to the Fair Work Commission to terminate Godfreys' outdated Employee Collective Agreement 2009.  

The application was filed by the Shop, Distributive and Allied Employees Association (SDA).

Godfreys, a niche appliance retailer with more than 220 retail stores and 456 employees, requested it be dismissed. It claimed that it wasn’t an application made by a person with standing under s225 of the Fair Work Act. This applies to an application for termination of an enterprise agreement after its nominal expiry date, where an employee or an employee organisation is covered by the agreement.

The FWC scrapped Godfreys’ request and granted termination of the agreement, in accordance with s227 of the Act, effective 29 December 2018.

No name makes it difficult 

This case was made difficult for the FWC because Godfreys refused to disclose the employee’s name. It also refused to provide a list of the employees which could help the FWC identify whether or not the applicant was a Godfreys employee.  

The FWC considered the submissions of all parties and was satisfied the application had been made by an employee covered by the agreement. The identity of the applicant wasn’t disclosed, as Godfreys hadn’t provided an undertaking to keep the identity of the applicant confidential as requested.

“No-disadvantage test” versus the “better off overall test”

The applicant stated the agreement was approved by the Workplace Authority pursuant to s327 of the Workplace Relations Act 1996 (Cth) (WR Act) sometime between January 2009 and 26 May 2009.

At the time of approval, it was a requirement pursuant to s346D of the WR Act that the agreement pass the “no-disadvantage test”. The applicant submitted the agreement passed the “no-disadvantage test” and came into operation thereafter. The “no-disadvantage test” has subsequently been replaced by the “better off overall test” in s186(2)(d) of the Act.

The applicant demonstrated that the award containeded superior entitlementst, and would therefore not pass today's better off overall test if it was applied today. 

The end result and some important considerations

The FWC found that the two threshold requirements set out in s225 of the Act – relating to the agreement having passed its nominal expiry date and the applicant being an employee covered by the agreement – were satisfied by the applicant’s submission.

The fact that the maintenance of the agreement would be contrary to the maintenance of proper industrial standards was a factor that strongly supported the termination of the agreement.

The commission was satisfied its decision wouldn’t leave Godfreys’ employees with non-commission conditions less favourable than those they currently enjoyed. 

It ordered the agreement be terminated.

Read the judgment

Lisa Reynolds (AG2017/5488) [2018] FWCA 6804
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