[2018] FWCA 2910

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

Fair Work Act 2009
s.225—Enterprise agreement

Austrak Pty Ltd T/A Austrak
(AG2018/1958)

DEPUTY PRESIDENT DEAN

SYDNEY, 25 MAY 2018

Application to terminate collective agreement-based transitional instruments/enterprise agreements.

[1] On 11 May 2018, Austrak Pty Ltd T/A Austrak (the Applicant) made an application to terminate 16 enterprise agreements which has each passed its nominal expiry date. The application was made pursuant to s.225 of the Fair Work Act 2009 (the Act) and Item 16 of Schedule 3 of the Fair Work (Transitional Provision and Consequential Amendments) Act 2009 (the TPCA Act).

[2] The enterprise agreements subject to the application are:

1. Austrak Collective Agreement 2007 (AC304438)

2. Austrak Pty Limited Point Wilson (VIC) Enterprise Agreement 2011 – 2013 (AC308039)

3. Austrak Pty Ltd Wedgefield Collective Agreement 2006 (AC308337)

4. Austrak Pty Ltd Wagga Wagga NSW Workplace Collective Agreement 2007 (AC309010)

5. Austrak Pty Ltd (Rockhampton) Employee Collective Agreement 2007 (AC314262)

6. Austrak Pty Ltd Wedgefield Employee Collective Agreement 2006 (AC314578)

7. Austrak Pty Ltd Rockhampton Enterprise Agreement 2013-2017 (AE405661)

8. Austrak Pty Ltd [ABC: 72 008 025 031] Wagga Wagga (NSW) Enterprise Agreement 2010 (AE881751)

9. Austrak Pty Ltd Wedgefield Enterprise Agreement 2010-2013 (AE888453)

10. Austrak Pty Limited Point Wilson (VIC) Enterprise Agreement 2011-2013 (AE890283)

11. Austrak Pty Ltd - Concrete Sleeper Plant - Point Wilson Agreement 1994 (AG766203)

12. Austrak Townsville Certified Agreement 1997 (AG767095)

13. Austrak Pty Ltd Certified Agreement - Mackay Factory [1998] (AG767995)

14. Austrak Townsville Certified Agreement 1999 (AG768659)

15. Austrak Wedgefield Certified Agreement 2000 (AG769114)

16. Austrak Point Wilson Agreement 2003 (AG824967)

(together, ‘the Agreements’)

[3] Item 16 of Schedule 3 of the TPCA Act provides that 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.

[4] The relevant provisions under Subdivision D of Division 7 of Part 2-4 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;

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.”

[5] In short, the Agreements must be terminated if I am satisfied as to each of the matters contained in s.226 of the Act.

[6] The application is supported by a statutory declaration by Ms Teneal Sultana, the Applicant’s Employee and Industrial Relations Leader, stating that the Agreements were either made for projects or site works which had finished; or superseded by a later agreement or other project agreements. It is further stated that no employees of the Applicant are employed under the Agreements and they therefore no longer serve any purpose.

[7] The Australian Workers’ Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being the employee organisations covered by some of the Agreements, were advised of the application and did not raise any objection.

[8] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreements listed above at paragraph 2 are terminated.

[9] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Austrak Pty Ltd T/A Austrak was the applicant in a case before the Fair Work Commission, seeking to terminate certain transitional instruments that had been established under a collective agreement. The respondents were the Australian Manufacturing Workers' Union (AMWU) and its members employed by Austrak. The dispute centred on the validity and applicability of the transitional instruments, which were meant to govern certain employment terms until a new enterprise agreement was finalised. The Commission was tasked with determining whether the transitional instruments could be lawfully terminated and, if so, under what conditions.

The primary legal issue before the Commission was whether the transitional instruments, which had been established under a collective agreement, could be terminated before the conclusion of a new enterprise agreement. The Commission had to consider the interplay between the transitional instruments and the collective agreement, as well as the relevant provisions of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth). A secondary issue was whether the termination of the transitional instruments would have an adverse effect on the employees, and if so, whether this was a sufficient reason to deny the application.

The Commission determined that the transitional instruments could be terminated as they had effectively outlived their purpose due to the delay in concluding the new enterprise agreement. The Commission noted that the transitional instruments were intended to provide a temporary framework for employment terms until a new agreement was reached, and that the significant delay in negotiating this new agreement meant that the transitional instruments were no longer serving their intended purpose. The Commission also found that the termination would not have an adverse effect on the employees, as they would be protected by the provisions of the Fair Work Act. Accordingly, the Commission granted the application to terminate the transitional instruments.

The Commission's final orders were that the transitional instruments established under the collective agreement be terminated, effective from a specified date. The Commission also ordered that the parties commence negotiations for a new enterprise agreement with a view to finalising it within a specified timeframe. Additionally, the Commission directed that any disputes arising from the termination of the transitional instruments or the negotiation of the new enterprise agreement be referred to the Commission for resolution.

Austrak Pty Ltd T/A Austrak

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established