An Nisa Pty Ltd

[2021] FWCA 3567

[2021] FWCA 3567

FAIR WORK COMMISSION

DECISION

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

An Nisa Pty Ltd
(AG2021/5452)

AN NISA PTY LTD 2014 EBA

Telecommunications services
COMMISSIONER O'NEILL	MELBOURNE, 22 JUNE 2021

Application for termination of the An Nisa Pty Ltd 2014 EBA.

[1] On 2 June 2021, An Nisa Pty Ltd (the Applicant) applied to terminate the An Nisa Pty Ltd 2014 EBA (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved as a multi-enterprise agreement. The parties to the Agreement are the Applicant, Rady Holdings Pty Ltd, Radcorp Holdings, Mobily Pty Ltd, Customed IT and all employees employed by the Applicant engaged in a classification in the Agreement. The 25 classifications in the Agreement are predominantly customer service, administrative, sales and logistics roles that are mapped in the Agreement to various classifications in the Retail, Clerks, Telecommunications, Commercial Sales, and Road Transport Awards.

[3] The Agreement has passed its nominal expiry date of 8 February 2019.

Background

[4] The Application was supported by a statutory declaration dated 2 June 2021, made by Mr Hasham Rady, Director of the Applicant. Following a mention on 7 June 2021, a further statutory declaration made by Mr Rady, dated 18 June 2021, was provided along with further submissions.

[5] The material filed by the Applicant establishes that:

● the business has narrowed its operations to a retail business selling telecommunications products, devices, services and accessories under licence from Telstra;

● the Applicant has 64 employees, of whom 63 are covered by the Agreement;

● the employees were provided notice of the Application and invited to communicate any views about the Application to the Commission directly;

● many of the classifications in the Agreement have substantially changed or no longer exist under the current operations;

● none of Rady Holdings Pty Ltd, Radcorp Holdings, Mobily Pty Ltd, or Customed IT employ any employees; and

● if the Agreement is terminated, the Applicant’s employees will be covered by the General Retail Award 2020 and the Clerks Private Sector Award 2020.

Consideration

[6] In relation to s.225 I am satisfied that the Applicant is entitled to make the application and that the Agreement has passed its nominal expiry date.

[7] In relation to s.226, I am required to terminate the Agreement if (a) I am satisfied that it is not contrary to the public interest to do so, and (b) if I consider it appropriate 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.

[8] I am satisfied that it is not contrary to the public interest to terminate the Agreement, taking into account all the material filed by the Applicant. As outlined above, the views of employees have been sought and none were received. This does not weigh against the termination of the Agreement. No employee organisation is covered by the Agreement.

[9] I am satisfied that it is not contrary to the public interest to terminate the Agreement even though some terms in the Agreement are superior to those in the applicable awards. I am satisfied that if the Agreement is terminated, the superior benefits (such as penalty rates for work performed on Sundays) that will apply to the Applicant’s employees outweigh the small number of terms in the Agreement that are superior to those in the applicable awards.

[10] I am satisfied that the likely effect that the termination of the Agreement will have on both the Applicant and its employees will be a simpler set of terms and conditions that better reflect the operations and practices the Applicant has in place today.

[11] I am satisfied that the requirements of s.226 of the Act have been met, and in all the circumstances, I am satisfied that it is appropriate to terminate the Agreement.

[12] The Agreement is terminated effective from today.

COMMISSIONER

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