Armesto's Transport Pty Ltd

[2013] FWCA 9947

[2013] FWCA 9947

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Armesto's Transport Pty Ltd
(AG2013/11044)

ARMESTO'S TRANSPORT EMPLOYEE COLLECTIVE AGREEMENT 2007

Road transport industry
COMMISSIONER SPENCER	BRISBANE, 18 DECEMBER 2013

Application for termination of the Armesto's Transport Employee Collective Agreement 2007.

[1] Armesto’s Transport Pty Ltd (the Applicant) has made an application to the Fair Work Commission (the Commission) 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 Armesto’s Transport Employee Collective Agreement 2007 1 (the Agreement).

[2] At item 4, of the originating application, in response to the question “[W]hat was the nominal expiry date of the agreement?” the Applicant has stated “Unsure”. Clause 4.2 of the Agreement stated:

“This agreement shall come into operation from the date of approval by the employees in accordance with s.340 of the [Workplace Relations Act 1996] and lodgement with the Office of The Employee Advocate and shall remain in force for a period of five years from the date of the lodgement.”

[3] The Applicant has filed no evidence as to when the Agreement was lodged with the Office of the Employee Advocate. The Commission is unable to ascertain the nominal expiry date of the Agreement.

[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] Section 225 of the Act provides:

“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.”

[6] 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.”

[7] The application to terminate the Agreement was lodged on 24 October 2013. The Commission issued Directions to the Applicant on 1 November 2013 to file material in reference to s.226 of the Act (set out above).

[8] On 14 November 2013, the day prior to the date for compliance with the Directions of 1 November 2013, the Applicant sought an extension of time. The Commission granted the request, granting an extension of a further 3 weeks, as requested by the Applicant.

[9] The Applicant failed to comply with this Direction. On Tuesday, 10 December 2013 (two business days after compliance with the amended Directions was required) the Commission corresponded with the Applicant and stated:

“To date, the Commission has not received any material in relation to this matter.

The Commission provides the Applicant until close of business on Friday, 13 December 2013, to file material in accordance with the Directions.

If no material is received by this time the Commissioner may consider the application on the basis of the material currently before the Commission and dismiss the application.”

[10] No response, and no further material, has been received by the Applicant to date.

[11] It is also noted that the Applicant had previously filed the same application earlier in 2013. The Applicant also failed to comply with Directions in relation to that earlier application and, after the Commission queried this non-compliance, withdrew the application.

Conclusion

[12] The Applicant has filed no material in support of the application for termination of the Agreement. The Commission has no material before it upon which to form any level of satisfaction as to those matters stipulated by s.226 of the Act.

[13] The Commission has no ability to assess those matters required by s.226 of the Act due to the failure of the Applicant to comply with Directions and substantiate the application. On that basis, the Commission cannot be satisfied, it is not contrary to the public interest to terminate the Agreement (in accordance with s.226(a)), and further, the Commission does not consider that it is appropriate to terminate the Agreement given the absence of evidence to assess the circumstances, against those matters stipulated by s.226(b).

[14] The Commission, more importantly, cannot, on the material, be satisfied that the Agreement has passed its nominal expiry date. In an application pursuant to s.225 of the Act, the Commission must be satisfied that the Agreement has in fact passed its nominal expiry date. An application may only be made, pursuant to s.225 of the Act, “[I]f an enterprise agreement has passed its nominal expiry date” (emphasis added).

[15] The application must be dismissed. The Agreement is not terminated.

[16] I Order accordingly.

COMMISSIONER

 1 AC310013.

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<Price code A, AC310013  PR545865>