Decision: Melbourne, 23 October 2001 [PR910614]
Member: Senior Deputy President Watson

This decision arose from an application by the Shop, Distributive and Allied Employees Association (the SDA) pursuant to s.170FB of the Act for the making of a s.170FA order to give effect to article 13 of the Convention Concerning Termination of Employment at the Initiative of the Employer (the Convention) in relation to potential redundancies by Franklins Limited (Franklins) arising from the closure of its Australian operations.

The order sought to require Franklins not to terminate the employment of any employee whose employment is regulated by the Franklins Limited SDA Victoria Agreement 2000 (the FLV Agreement) [PR902124] and/or the Franklins Big Fresh SDA Victoria Consent Award 1994 [Print L5499] and to provide to the SDA relevant information in relation to proposed terminations and an opportunity for consultation on measures to avert or minimise terminations and to mitigate the adverse effects of any terminations.

The jurisdictional issue for determination was whether or not the relevant clauses of the FLV Agreement constituted an alternative mechanism by which effect would be given to the requirements of article 13 of the Convention referred to in s.170FA of the Act. If this question were to be answered in the affirmative, s.170FC would operate to deprive the Commission of jurisdiction.

The Commission found that the Act does not give primacy to agreements over provisions enacted to give effect to international obligations and that a certified agreement does not extinguish the Commission's jurisdiction to make a s.170FA order unless the agreement constitutes an alternative mechanism for giving effect to those obligations.

The Commission was not satisfied that the relevant FLV Agreement provisions gave effect to the requirements of article 13. In particular, the Commission found that clauses requiring consultation prior to the termination of employment for redundancy, and providing for the resolution of disputes, were not sufficient to constitute an alternative mechanism for the purposes of s.170FC.