Application by J.A. Martin Electrical Pty Ltd
[2022] FWCA 858
•11 MARCH 2022
| [2022] FWCA 858 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.225—Enterprise agreement
Application by J.A. Martin Electrical Pty Ltd
(AG2022/152)
J.A. Martin Electrical NSW Clerical & Store Workers Enterprise Agreement 2019
| Storage services | |
| Commissioner Matheson | SYDNEY, 11 MARCH 2022 |
Application for termination of the J.A. Martin Electrical NSW Clerical & Store Workers Enterprise Agreement 2019.
On 20 January 2022, J.A. Martin Electrical Pty Ltd (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the J.A. Martin Electrical NSW Clerical & Store Workers Enterprise Agreement 2019 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.
The Agreement is a single enterprise agreement. It was approved by Deputy President Cross on 5 December 2019.[1]
The nominal expiry date of the Agreement is 31 October 2021.
Legislation
The relevant provisions of the Act are 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.”
Consideration – s.225
Is the Applicant an employer covered by the Agreement?
Clause 4 of the Agreement names J.A Martin Electrical Pty Ltd as a party to the Agreement. The Applicant is J.A. Martin Electrical Pty Ltd and I am satisfied it is the same legal entity.
Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.
Has the Agreement passed its nominal expiry date?
Clause 6 of the Agreement provides that the nominal expiry date of the Agreement is 31 October 2021. Having considered the materials before the Commission and clause 6 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.
Consideration – s.226
Section 226(a) – Public interest
Section 226(a) of the Act requires the Commission to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards.[2] The notion of public interest is distinct in nature from the interests of the parties.[3]
The application indicates the Agreement covers three employees who do not oppose the application to terminate the Agreement. The Applicant submits that the role of Inductions and Training Administrator is not expressly covered by the Agreement and that the two employees that clearly fall within coverage will have their terms and conditions covered by the Clerks – Private Sector Award 2020 (Clerks Award) if the Agreement is terminated. The Applicant submitted that the termination of the Agreement is not contrary to public interest.
In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
Section 226(b) – Appropriateness
On 25 February 2022, the Commission directed that the Applicant:
serve a copy of the directions, the Form F24B, the Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement and file a statutory declaration confirming compliance; and
file and serve on each employee and employee organisation covered by the Agreement an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its application to terminate the Agreement.
The Applicant filed a statutory declaration confirming compliance with the above directions.
The Commission’s directions required that any employee or employee organisation covered by the Agreement and who opposes the termination of the Agreement file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement by 8 March 2022. The directions also noted that if any employee or employee organisation covered by the Agreement opposed the application, the matter would be listed for hearing and the absence of opposition to the application would result in the matter being determined on the papers.
There is no employee organisation covered by the Agreement. The only employer covered by the Agreement is the Applicant and the Applicant provided a statement of its Human Resources Manager indicating the Agreement is no longer of utility to the Applicant and the relevant employees’ terms of employment will be governed by the Clerks Award and a supplementary contract of employment. That statement also indicates that employees will not suffer any reduction in pay as a result of the Agreement being terminated. The employees did not raise any objections to the application and the Applicant filed a statement from each employee indicating that they do not oppose the termination of the Agreement. The Applicant has also provided an undertaking that to the effect that the employees who are covered by the Agreement as at the termination date will not suffer a reduction in their base rate of pay.
In all the circumstances, and taking into account the relevant provisions in s.226(b) of the Act, I consider that it is appropriate to terminate the Agreement.
Conclusion
Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.
Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 11 March 2022. An Order to that effect will be issued in conjunction with this Decision.
COMMISSIONER
[1] [[2019] FWCA 8279].
[2] Re Kellogg Brown and Root, Bass Strat (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40-41.
[3] Ibid, 40.
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