Adtrans Trucks Adelaide Pty Ltd T/A Daimler Trucks Adelaide

[2019] FWCA 8515

[2019] FWCA 8515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry dateAdtrans Trucks Adelaide Pty Ltd T/A Daimler Trucks Adelaide

(AG2019/4404)

DAIMLER TRUCKS ADELAIDE ENTERPRISE AGREEMENT 2015

Vehicle industry
COMMISSIONER HAMPTON	ADELAIDE, 17 DECEMBER 2019

Application for termination of the Daimler Trucks Adelaide Enterprise Agreement 2015.

[1] This decision concerns an application by Adtrans Trucks Adelaide Pty Ltd T/A Daimler Trucks Adelaide (Adtrans) pursuant to s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Daimler Trucks Adelaide Enterprise Agreement 2015 (the Agreement). The Agreement was originally approved by the Commission in October 2016, 1 with the Agreement commencing operation on 12 October 2016. The Agreement’s nominal expiry date was 1 July 2018. The Agreement also covers the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

[2] A hearing by telephone was conducted in this matter on 17 December 2019. At the conclusion of that hearing I expressed my intention to terminate the Agreement and indicated that I would subsequently provide a written decision.

[3] The FW Act relevantly provides:

“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] The Application was accompanied by a statutory declaration of Ms Caitlin Farmer, People and Safety Manager - Trucks, relevantly setting out the grounds for the application to terminate the Agreement. Those grounds included considerations to the effect of the following:

•  The Agreement has passed its nominal expiry date and neither the AMWU or any employees had approached Adtrans to negotiate renewal;

•  The Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Award) generally provides more favourable pay rates than the Agreement;

•  Following discussions regarding potential termination of the Agreement, Adtrans employees covered by the Agreement voted on 4 and 5 November 2019 to support the cancellation of the Agreement and be covered by the Award and an individual contract;

•  It would not be contrary to the public interest for the Agreement to be terminated and for the Award and individual contracts to apply to the employees and Adtrans.

[5] Given the circumstances, Adtrans is entitled to apply for the termination of the Agreement pursuant to s.225 of the FW Act.

[6] The Commission issued a notice of listing, which contained directions, on 21 November 2019. This was issued directly to Adtrans and the AMWU as a party covered by the Agreement. The directions included the requirement for Adtrans to provide a copy of the notice of listing and directions to all employees covered by the Agreement. The directions also explained the nature of the application and invited employees, their representative(s) or organisation(s) to express a view about the matter including by raising any concerns directly with the Commission.

[7] The Commission did not receive any communication from any employee covered by the Agreement expressing concerns about this matter or otherwise wishing to be heard in relation to the application. Given this fact, the evidence provided by Ms Farmer, and the position subsequently advanced by the AMWU, I am satisfied that the majority of employees support the application.

[8] Mr Scott Batchelor of the AMWU participated in the hearing and indicated that the Union had consulted with its membership and based upon their views did not oppose the termination of the agreement. In response to Ms Farmer’s statutory declaration Mr Batchelor did suggest to the Commission that attempts had been made to communicate with Adtrans following the expiry of the Agreement. This suggestion did not alter the Union’s substantive position on the matter before me and I have taken their stance into account as required by s.226(b)(i) of the FW Act.

[9] I accept that a valid application has been made. Adtrans is eligible to apply for the Agreement’s termination and has done so after its nominal expiry date. Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the agreement and that it is appropriate in all of the circumstances, including having regard to the views of the employer, the AMWU and the employees. It is in the interests of the parties, and not contrary to the public interest, that the Award, in conjunction with individual contracts that are to be provided, apply within this workplace to the relevant employees. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[10] Given this determination, the termination date is a discretionary matter for the Commission under s.227 of the FW Act. It was suggested to me that a period of time allowing the individual contracts to be finalised prior to the Agreement’s termination would be beneficial and that termination in mid-January 2020 would allow this to occur. I agree with this proposed course and will schedule the termination on that basis.

[11] The Agreement is terminated and the termination will take effect on and from 11:59 pm on 24 January 2020.

COMMISSIONER

 1   [2016] FWCA 7316.

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