A.B. Oxford Cold Storage Co. Pty. Ltd.

[2019] FWCA 3637

[2019] FWCA 3637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

A.B. Oxford Cold Storage Co. Pty. Ltd.
(AG2019/1614)

A.B. OXFORD COLD STORAGE CO. PTY LTD & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2017-2018

Storage services
DEPUTY PRESIDENT CLANCY	MELBOURNE, 27 MAY 2019

Application for termination of the A.B. Oxford Cold Storage Co. Pty Ltd & National Union of Workers Enterprise Agreement 2017-2018.

[1] On 16 May 2019, A.B. Oxford Cold Storage Co. Pty. Ltd. (Oxford Cold Storage) filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the A.B. Oxford Cold Storage Co. Pty Ltd & National Union of Workers Enterprise Agreement 2017-2018 (the Agreement). The Agreement is a single-enterprise agreement which nominally expired on 31 December 2018. I have noted the Agreement covers the National Union of Workers (NUW).

[2] Accompanying the Application was a statutory declaration of Mr Rodney Fleiszig, Director at Oxford Cold Storage.

[3] 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.”

[4] Mr Fleiszig declared the following matters make termination of the Agreement not contrary to the public interest:

•  Oxford Cold Storage is an Australian owned company in the business of cold storage (temperature controlled warehousing);

•  Prior to 31 December 2018, Oxford Cold Storage employed roughly 20 employees under the Agreement;

•  Following Oxford Cold Storage entering into a Memorandum of Understanding (MOU) with the NUW, Oxford Cold Storage restructured its business and transferred its employees to a new company, A.B. Oxford Cold Storage Co. No. 2 Pty Ltd (Oxford 2). The transferring employees are now employed under a new enterprise agreement, agreed between Oxford 2 and the NUW in accordance with the terms of the MOU;

•  The effect of the change was that Oxford Cold Storage no longer directly employs any staff under the terms of the Agreement;

•  The accrued entitlements of the employees covered by the Agreement were transferred with those employees to Oxford 2; and

•  Oxford Cold Storage now seeks to terminate the Agreement on the basis that:

a) The Agreement has passed its nominal expiry date; and

b) There have been no employees covered by the Agreement employed by Oxford Cold Storage since 1 January 2019.

[5] On 17 May 2019, I caused an email to be sent to the NUW seeking its view as to whether it consented or objected to the Application.

[6] On 24 May 2019, Mr Matt Toner, Industrial Officer at the NUW, emailed the Commission advising that the NUW consented to the termination of the Agreement.

[7] An employer may apply under s.225(a) of the Act to the Commission for the termination of the Agreement. Mr Fleiszig declared Oxford Cold Storage is the employer covered by the Agreement and I am satisfied that Oxford Cold Storage has standing to bring the Application under s.225(a) of the Act.

[8] In having regards 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 (s.226(a)) and it is appropriate, taking into account all the circumstances (s.226(b)). In this latter regard, I note the employer and the employee organisation covered by the Agreement consent to its termination and that as there are no longer any employees covered by the Agreement, there are no views of employees for me to take account of nor any effects of termination to be felt.

[9] In accordance with s.227 of the Act, the termination will take effect from 27 May 2019.

DEPUTY PRESIDENT

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