Australian Professional Galvanizing Pty Ltd

[2019] FWCA 6133

[2019] FWCA 6133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Australian Professional Galvanizing Pty Ltd
(AG2019/2953)

AUSTRALIAN PROFESSIONAL GALVANIZING ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 18 SEPTEMBER 2019

Application for termination of the Australian Professional Galvanizing Enterprise Agreement 2013.

[1] On 13 August 2019 Australian Professional Galvanizing Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Australian Professional Galvanizing Enterprise Agreement 2013 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration of Mr Stephen Pollard, Managing Director of the Employer. Mr Pollard declared that the Agreement aligned closely with the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) and there were only minor differences between the Agreement and the Manufacturing Award, which Mr Pollard’s declaration briefly set out.

[3] On 20 August 2019, my Associate wrote to the Employer noting Mr Pollard’s statutory declaration and seeking the views of the employees that remained covered by the Agreement. The Employer was directed to provide to the relevant employees a copy of the email from my chambers inviting them to provide their views to chambers and copies of the application in this matter and Mr Pollard’s statutory declaration.

[4] No employee covered by the Agreement wrote to my chambers providing their view on the proposed termination of the Agreement by 30 August 2019; the date set for their views to be provided. Mr Pollard confirmed in writing that my direction had been complied with by the Employer.

[5] Following the Employer’s confirmation, I wrote to the parties through my chambers and noted that the Agreement covers employees under not only the Manufacturing Award, but also the Clerks – Private Sector Award 2010 (the Clerks Award), although Mr Pollard’s declaration referred only to the Manufacturing Award.

[6] I directed the Employer to confirm whether it consulted with allof its employees covered by the Agreement, not just its manufacturing employees. Further, I noted the historical wage increases provided by the Agreement and directed the Employer to detail the wage rates currently paid to its employees and to confirm whether it committed to maintaining over-Award rates of pay.

[7] On 6 September 2019 Mr Pollard sent correspondence in response confirming that it had consulted with allof its employees and had provided them with the documents set out above at [3]. Mr Pollard stated, “I can commit that no employee of [the Employer] will have there pay rate changed as a result of this change to the award. We will continue with our current pay levels [sic]”. On 9 September 2019 the Employer confirmed the wage rates currently paid to its employees. On my own examination, the rates currently paid by the Employer to its employees covered by the Agreement, and committed to continue to be paid are substantially greater than the rates contained within the two Awards referred to above.

[8] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[9] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[10] I am aware that employees remain covered by the Agreement. If the Agreement is terminated, the terms and conditions of their employment will be determined in accordance with either the Manufacturing Award or the Clerks Award, depending on the employee concerned. No employee covered by the Agreement took up my invitation to provide their views on the termination of the Agreement.

[11] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[12] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[13] The termination will take effect from today, 18 September 2019.

COMMISSIONER

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