Application by Treasury Wine Estates Vintners Ltd T/A Treasury Wine Estates
[2023] FWCA 532
•22 FEBRUARY 2023
| [2023] FWCA 532 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Application by Treasury Wine Estates Vintners Ltd T/A Treasury Wine Estates
(AG2023/171)
Treasury Wine Estates Barossa Wineries Maintenance Enterprise Agreement Variation 2020
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 22 FEBRUARY 2023 |
Application for termination of the Treasury Wine Estates Barossa Wineries Maintenance Enterprise Agreement Variation 2020
The following are reasons for decision delivered ex tempore on 20 February 2022.
On 31 January 2023 Treasury Wine Estates Vintners Ltd T/A Treasury Wine Estates (TWEV, the employer or the applicant) made an application pursuant to s 225 of the Fair Work Act 2009 (Cth) to terminate the Treasury Wine Estates Barossa Wineries Maintenance Enterprise Agreement Variation 2020[1] (the Maintenance Agreement or the Agreement). The Agreement passed its nominal expiry date on 30 June 2021.
The application was supported by a Form F24C statutory declaration of Mr Gramos Gashi, Operational Excellence Manager, which declared, amongst other things, that the continued operation of the Agreement would be unfair to employees covered by it, given that:
· the Agreement covers three sites of TWEV and Southcorp Wines Pty Limited (together, TWE), one of which (Tanunda Road) is no longer operational;
· employees who perform work at the two remaining sites are primarily employed to work at TWE’s Wolf Blass site in the Barossa, which is covered by the Treasury Wine Estates Barossa Enterprise Agreement 2020-2023[2] (Barossa Agreement). The Barossa Agreement includes rates of pay and other conditions that are more beneficial that the Agreement;
· the work performed at the two remaining sites covered by the Agreement is ad hoc and short-term in nature and, to avoid employees suffering a reduction in wages while working at those sites, TWE pays them at the higher rates under the Barossa Agreement for the periods of time that they work at the sites.
TWE has provided a written undertaking to continue apply the terms and conditions of the Barossa Agreement to employees who are currently covered by the Agreement, with effect upon the termination of the Agreement.
The Australian Workers’ Union (AWU) and the Communications Electrical Electronic Energy Information Postal Plumbing & Allied Services Union of Australia - Electrical Division (CEPU) are employee organisations covered by the Agreement. Correspondence was sent to the AWU and the CEPU on 2 February 2023 requiring the unions to lodge a Form F24D declaration within seven days of service of the Form F24B and F24C by the applicant.
On 2 February 2023 I listed this matter for hearing on 20 February 2023.
On 7 February 2023 the AWU lodged a Form F24D notifying the Commission that it supported termination of the Agreement.
On 17 February 2023 the CEPU lodged a Form F24D notifying the Commission that it supported termination of the Agreement.
On 20 February 2023 I heard this matter (AG2023/171) contemporaneously with a separate s 225 application (AG2023/172) filed by the same employer. During the hearing, I delivered my decision ex tempore approving the termination of the agreements the subject of both applications.
The reasons for my decision concerning this matter (AG2023/171) are set out in further detail below.
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 TWEV has standing to make this application as it is an employer covered by the Agreement.
Southcorp Wines Pty Limited (Southcorp) is a second employer covered by the Agreement. Southcorp is a related entity of TWEV and has no objection to the termination of the Agreement.
Based on the material contained in the statutory declaration filed with the application, and taking into consideration s 226(1)(a), I am satisfied that the continued operation of the Agreement would be unfair for employees covered by the Agreement.
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 AWU and the CEPU, employee organisations covered by the Agreement, do not oppose the termination of the Agreement.
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. In any event, persons covered by the Agreement are, with respect to their primary employment, covered by the Barossa Agreement. That agreement has not reached its nominal expiry date. The relevant employees retain collective bargaining rights with respect to the Barossa 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 Act, I am satisfied that it is appropriate in all the circumstances to do so. Accordingly, I must terminate the Agreement.
The application to terminate the Agreement is approved to take effect from 12:01am on 27 February 2023. This short period of prospectivity will allow relevant employees to be notified of this decision. I issue an order[4] to this effect in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Ms B Shelton with Ms J Sher, with permission, on behalf of Treasury Wine Estates Vintners Ltd T/A Treasury Wine Estates
Mr P Lamps, of and on behalf of, the Australian Workers’ Union
Mr D Austin, of and on behalf of, the Communications Electrical Electronic Energy Information Postal Plumbing & Allied Services Union of Australia - Electrical Division
Hearing:
2023
Adelaide (by telephone)
20 February
[1] [2020] FWCA 2621
[2] [2021] FWCA 6063
[3] Schedule 1 Part 12 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (commencement 7 December 2022)
[4] PR750826
Printed by authority of the Commonwealth Government Printer
<AE426637 PR750824>
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