Ballarat Regional Industries Inc

[2020] FWCA 3197

[2020] FWCA 3197

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Ballarat Regional Industries Inc
(AG2020/1539)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 18 JUNE 2020

Agreement to terminate individual agreement-based transitional instrument.

[1] On 2 June 2020, Ballarat Regional Industries Inc. applied for the termination of the Ballarat Regional Industries Enterprise Agreement, 2001 (the Agreement), under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Schedule 3, Item 16 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) 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.

[3] I am satisfied that the Agreement is a collective agreement-based transitional instrument and that it passed its nominal expiry date in 2013.

[4] The Act provides 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 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.’

[5] Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[6] On 3 June 2020, the Fair Work Commission (the Commission) directed the applicant to provide a copy of the application with its supporting documentation, and a copy of the Commission’s Directions, to all employees covered by the Agreement. The Directions stated that any party seeking to oppose the application should contact Chambers.

[7] On 11 June 2020, the applicant provided the Commission with an email confirming how the Commission’s Directions had been complied with.

[8] The matter was listed for Non-Attendance Hearing on 17 June 2020. Any interested persons were advised to contact Chambers if they wished to be heard in the matter. No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

[9] Based on the application and the material before me, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me that raises public interest considerations which might lead me to conclude that the Agreement should not be terminated.

[10] I am satisfied that it is appropriate to terminate the Agreement, and I do so.

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

DEPUTY PRESIDENT

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