Application by Qube Logistics (SA1) Pty Ltd T/A Qube Logistics
[2023] FWCA 1605
•2 JUNE 2023
| [2023] FWCA 1605 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Application by Qube Logistics (SA1) Pty Ltd T/A Qube Logistics
(AG2023/1327)
QUBE LOGISTICS SA1 MURRAY BRIDGE OPERATIONS ENTERPRISE AGREEMENT
| Road transport industry | |
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 2 JUNE 2023 |
Application for termination of the Qube Logistics SA1 Murray Bridge Operations Enterprise Agreement
On 9 May 2023 Qube Logistics (SA1) Pty Ltd T/A Qube Logistics (Qube, the employer or the applicant) made an application pursuant to s 225 of the Fair Work Act 2009 (Cth) (FW Act) to terminate the Qube Logistics SA1 Murray Bridge Operations Enterprise Agreement (the Agreement).[1] The Agreement passed its nominal expiry dated on 31 December 2022.
The President has allocated this application to me for determination, subject to s 615A(3) (concerning when a full bench is required to determine such applications).
The application was supported by a Form F24C statutory declaration of Mr Daniel Ortiz, GM – Industrial Relations, which declared that there were no employees covered by the Agreement, and as such, that its termination would have no adverse effect on any employees. Mr Ortiz also declared that the termination was part of a broader process undertaken by Qube to tidy up any unused or expired legacy enterprise agreements that the employer had no intent to utilise moving forward.
In its application, the employer stated that the Transport Workers’ Union (TWU) was an employee organisation covered by the Agreement.
On 10 May 2023 I listed this matter for directions on 18 May 2023. The Notice of Listing was sent to representatives of Qube and the TWU.
The same day, my chambers informed Qube and the TWU via email that I would seek clarity from the parties in relation to whether the Agreement formally “covers” the TWU. This is because neither the Agreement on its face, nor the 2 August 2019 decision approving the Agreement, make any reference to the TWU being covered by the Agreement.[2]
I called the matter on for a directions hearing on 18 May 2023. The applicant appeared. There was no appearance by the TWU.
Following the directions hearing, my chambers sent the following to the applicant and the TWU:
“Dear Parties
This matter came before Deputy President Anderson for directions today, 18 May 2023.
The applicant employer appeared. No other interests appeared.
The Deputy President directed that the Transport Workers’ Union (TWU) advise the Commission, copied to the Applicant, of its position on the application within seven days (by close of business (5:00pm (ACST) on 25 May 2023). This can be done by either return email or completion of the requisite form (attached).
At the directions hearing the Deputy President indicated that in light of the material filed, and subject to hearing from the TWU (if it wishes to be heard), it would appear that no employees are covered or likely to be covered by the Agreement. The Deputy President indicated that in those circumstances the Commission’s provisional view was that the Agreement must be terminated under s 226(1)(b) as no other considerations appear to render that course inappropriate.
A decision will not however be made until the TWU is provided seven further days to express its position.
Kind regards” (emphasis in original)
On 25 May 2023 and 31 May 2023 I granted extensions of time for the TWU to respond in light of discussions it advised it was having with the employer concerning the matter.
On 2 June 2023 the TWU advised that it has received written statements from Qube addressing concerns and that “the TWU will not be opposing the termination of the Qube Logistics SA1 Murray Bridge Operations Enterprise Agreement”.
Legislative provisions
The relevant provisions of the FW Act[3] 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 Terminating an enterprise agreement after its nominal expiry date
(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.
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
I am satisfied that Qube has standing to make this application as it is an employer covered by the Agreement.
Based on the material contained in the statutory declaration filed with the application, and taking into consideration s 226(1)(b), I am satisfied that the agreement does not, and is not likely to, cover any employees.
Having regard to s 226(3)(b), the views of the employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated.
The TWU does not oppose the termination of the Agreement. I am well satisfied that the TWU has an interest in the matter. It was a bargaining representative for the Agreement when it was made. As this is not a matter that requires reference to a full bench under s 615A(3), I need not determine whether the TWU is formally an employee organisation covered by the Agreement within the meaning of s 53(1) of the FW Act. It may simply be that by oversight it did not request the Commission to so designate it at the time of approval.
Section 226(2) is not relevant as termination of the Agreement would not give rise to nor does it arise from the termination or intended termination of employment of a person covered by the Agreement on the ground of the employer’s redundancy or insolvency.
The considerations at s 226(4) are not relevant as bargaining is not occurring with respect to the Agreement.
I am satisfied that there are no other relevant matters to take into account (s 226(5)) in deciding whether to terminate the Agreement.
Having regard to s 226(1A) of the FW Act, I am satisfied that it is appropriate in all the circumstances to do so. Accordingly, I must terminate the Agreement.
Conclusion
The application to terminate the Agreement is approved.
It will take effect from 11.59pm on 2 June 2023. I issue an order[4] to this effect in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Mr D Ortiz of and on behalf of Qube Logistics (SA1) Pty Ltd T/A Qube Logistics
Hearing:
2023
Adelaide (by telephone)
18 May
[1] [2019] FWCA 5378; see s 53(1) FW Act
[2] Ibid
[3] Schedule 1 Part 12 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (commencement 7 December 2022)
[4] PR762762
Printed by authority of the Commonwealth Government Printer
<AE504717 PR762762>
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