Agri Labour Australia Pty Ltd

[2019] FWCA 6635

[2019] FWCA 6635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Agri Labour Australia Pty Ltd
(AG2019/3176)

AGRI LABOUR AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2012

Agricultural industry
COMMISSIONER HUNT	BRISBANE, 24 SEPTEMBER 2019

Application for termination of the Agri Labour Australia Pty Ltd Enterprise Agreement 2012.

[1] On 26 August 2019 Agri Labour Australia Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Agri Labour Australia Pty Ltd Enterprise Agreement 2012 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration of Mr Casey Brown, Managing Director of the Employer. Mr Brown declared that termination of the Agreement would restore employees’ terms and conditions to align with three modern awards that apply to the Employer’s business, depending on the particular employee. Those modern awards are the Storage Services and Wholesale Award 2010, the Pastoral Award 2010 and the Food, Beverage and Tobacco Award Manufacturing 2010 (jointly; “the Awards”).

[3] Mr Brown declared that the Employer had sent an email to each of its 74 employees inviting them to express any concerns about the proposed termination of the Agreement. The Employer received eight responses none of which expressed any concerns. Enclosed with Mr Brown’s declaration were several tables setting out the differences between the Agreement’s terms and conditions and each of the Awards.

[4] On 4 September 2019, my Associate wrote to the Employer noting Mr Brown’s statutory declaration. I proposed, and the Employer consented for a notice to be provided to the Employer for it to serve on each of its 74 employees inviting those employees to provide their views regarding the proposed termination of the Agreement directly to my chambers. The Employer confirmed to my chambers that it provided the notice to the relevant employees on 6 September 2019, along with copies of the Agreement, the Form F24B application and Mr Brown’s Form F24C statutory declaration.

[5] On 6 September 2019, my chambers received an email from a Mr Jung-yu Liu regarding this matter. Mr Liu’s email enclosed an amended page from the Employer’s Form F24B which included Mr Liu’s contact details within a table headed ‘Applicant’s representative’ and described that he was from the ‘Lamana premium group’. The email did not provide any view regarding the termination of the Agreement.

[6] My associate wrote to the parties regarding Mr Liu’s email and asked that the parties confirm whether the ‘Lamana premium group’ had commenced to act for the Employer in this matter, or whether Mr Liu was in fact an employee of the Employer and by his email had attempted to provide his views on the termination of the Agreement.

[7] On 11 September 2019 Mr Liu sent a further email stating that his first email had been a mistake and he had “misunderstood the procedures about the contents from agrilabour email”. Mr Liu did not raise any concerns regarding the proposed termination of the Agreement.

[8] No other employee covered by the Agreement expressed any view on the proposed termination of the Agreement to my chambers.

[9] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[10] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[11] If the Agreement is terminated, the terms and conditions of the relevant employees’ employment will be determined in accordance with one of the Awards, depending on the employee concerned. No employee covered by the Agreement, apart from Mr Liu, took up my invitation to provide their views on the termination of the Agreement. As noted above, Mr Liu confirmed that he had no concerns about the termination of the Agreement.
[12] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[13] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[14] The termination will take effect from today, 24 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE400710  PR712728>