Alarm Industries Pty Ltd

[2013] FWCA 7016

[2013] FWCA 7016

FAIR WORK COMMISSION

DECISION

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

Alarm Industries Pty Ltd
(AG2013/8926)

ALARM INDUSTRIES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2008-2011

Miscellaneous
COMMISSIONER SPENCER	BRISBANE, 16 SEPTEMBER 2013

Application for termination of the Alarm Industries Pty Ltd Employee Collective Agreement 2008-2011.

[1] Alarm Industries Pty Ltd (the Applicant) has made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s.225 of the Fair Work Act 2009 (the Act) to terminate the Alarm Industries Pty Ltd Employee Collective Agreement 2008-2011 1 (the Agreement). It is noted that the application was mistakenly made on a Form F24 - Application for Termination of Enterprise Agreement rather than a Form F28 - Application for Termination of Collective-Agreement based Transitional Instrument. However in so far as the matters which the Fair Work Commission (the Commission) must take into account, nothing turns on the difference.

[2] A copy of the “Notice under section 346M of the Workplace Relations Act 1996” was filed in support of the application. This notice stated that the date of issue, of the notice, was 14 May 2009. The Agreement commenced operation on the seventh day after the date of the issue of the notice, being 24 May 2009. Clause 1.3 of the Agreement provides that the Agreement “shall apply for a period of 3 years or until replaced or cancelled”. By operation of clause 1.3 the nominal expiry date of the Agreement is 24 May 2012 and is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] Section 226 of the Act provides:

“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.”

[4] Item 16 of Schedule 3 of the Transitional Act provides, so far as presently relevant, that:

“Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[5] The application to terminate the Agreement was lodged on 2 September 2013. The Commission issued Directions to the Applicant on 10 September 2013 to file material in reference to s.226 of the Act (set out above).

[6] The Applicant filed materials in accordance with these Directions.

Consideration

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[7] The Applicant submitted that as the Employer covered by the Agreement it was their view that the Agreement should be terminated.

[8] The Applicant submitted that, at present, only two employees were covered by the Agreement. The Applicant submitted two letters, one from each employee, in similar terms and signed by the employees. The letter stated that the employee was served the application for termination of the Agreement by the Applicant and was advised of the “differences” between the Agreement and the relevant Modern Award. The employees each stated that they understood that termination of the Agreement meant that their employment would then be subject to the “Electrical & Communications Award 2010” which I take to be a reference to the Electrical, Electronic and Communications Contracting Award 2010 2 (the Modern Award).

[9] While the letters do not state the view of each employee per se, the letters show that the employees are aware of the termination application, aware that the Modern Award will now apply to their employment (if the Agreement is terminated) and have been advised of the differences between the two. The employees’ signatures on the letters are, prima facie, their agreement with these arrangements.

[10] There are no employee organisations covered by the Agreement.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[11] In response to the Directions of the Commission the Applicant filed a comparison document for both employees, comparing their earnings under the Agreement and the Modern Award.

[12] The comparison shows that for the previous four weekly pay cycles the employees would have achieved a higher payment under the Modern Award. This is attributable from the increases in allowances (travel time and start/find on the job allowances) and overtime payments.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[13] The Respondent submitted that there was nothing within their knowledge that would be contrary to the public interest in the termination of the Agreement.

[14] On the material it can be seen that this Agreement is relatively old, does not provide for significant terms and conditions of employment and is in many respects inferior to the relevant Modern Award. This Agreement was made under the former Workplace Relations Act 1996 (Cth) and in accordance with the relevant tests for approval at that time.

Conclusion

[15] The Commission is satisfied that an application for the termination of an enterprise agreement has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[16] The Commission is satisfied that it is not contrary to the public interest to order the termination of the Agreement. The employees will revert to the Award.

[17] The Commission is satisfied that it is appropriate to terminate the Agreement in all the circumstances and having considered the views of the Applicant and the employees and the circumstances of the Applicant and the employees.

[18] Having considered the material and s.226 of the Act the Agreement must be terminated.

[19] The termination will operate from the date of this decision.

[20] I Order accordingly.

COMMISSIONER

 1 AC320911.

 2   MA000025.

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<Price code A, AC320911  PR541837>