BGL Operations Pty Ltd T/A Bells Pure Ice and Associated Companies

[2021] FWCA 5269

[2021] FWCA 5269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

BGL Operations Pty Ltd T/A Bells Pure Ice and Associated Companies
(AG2021/6591)

TROPICAL ICE AND CHUNK ICE AND COLD STORAGE ENTERPRISE AGREEMENT 2012

Storage services
COMMISSIONER HUNT	BRISBANE, 26 AUGUST 2021

Application for termination of the Tropical Ice and Chunk Ice and Cold Storage Enterprise Agreement 2012.

[1] On 6 August 2021, BGL Operations Pty Ltd T/A Bells Pure Ice and Associated Companies (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Tropical Ice and Chunk Ice and Cold Storage Enterprise Agreement 2012 (the Agreement). The nominal expiry date of the Agreement is 31 July 2016.

[2] No employee organisations (unions) are covered by the Agreement.

[3] The application was supported by a statutory declaration from Mr Ben Menkens, General Manager of the Employer which declared, amongst other things, that there are four employees covered by the Agreement. If the Agreement is terminated, the employees will then be covered by either the Road Transport and Distribution Award 2020 (the Road Transport Award) or the Food, Beverage and Tobacco Manufacturing Award 2020 (the Food Award) (collectively, the Awards), as the case may be for each of the employees.

[4] The Employer filed supplementary information comparing the key entitlements for employees provided by the Agreement versus the Awards.

[5] I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 13 August 2021, I received confirmation from the Employer that it had complied with the above direction. The employees covered by the Agreement were invited to provide any views relevant to the application. I did not receive any correspondence from any of the employees to my chambers by 20 August 2021.

Termination of an enterprise agreement after its nominal expiry date

[6] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which 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 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.”

Consideration

[7] Based on the material contained in the statutory declaration of Ben Menkens, and in consideration of s.226(a) of the Act, 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.

[8] There are four employees covered by the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

[9] In consideration of the material before me relevant to s.226(b)(i) and (ii) of the Act, it is clear that if the Agreement is terminated, the employees presently covered by the Agreement will receive superior entitlements under the Awards than if they were to remain covered by the Agreement. Employees will be entitled to overtime rates for hours worked in excess of 38 hours per week. Employees will be paid penalty rates for working on Saturdays under the Awards. The minimum shift length will increase from two hours to four hours (or three hours on public holidays under the Food Award).

[10] Employees will be entitled to certain allowances under the Awards which are not payable under the Agreement. Employees will also have access to individual flexibility arrangements. The Awards also provide more flexibility to employees around leave arrangements.

[11] Having taken into account the circumstances of the employees and the likely effect that the termination will have on the employees, together with the Employer’s desire to terminate the Agreement, 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, 26 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE895750  PR733185>