Bin Smart Pty Ltd

[2020] FWCA 6451

[2020] FWCA 6451

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Bin Smart Pty Ltd
(AG2020/3157)

BIN SMART PTY LTD ENTERPRISE AGREEMENT 2012

Waste management industry
COMMISSIONER YILMAZ	MELBOURNE, 1 DECEMBER 2020

Application for termination of the Bin Smart Pty Ltd Enterprise Agreement 2012.

[1] Bin Smart Pty Ltd has made an application for the Fair Work Commission (Commission) to terminate the Bin Smart Pty Ltd Enterprise Agreement 2012 (Agreement) pursuant to s.225 of the Fair Work Act 2009 (FW Act). The application was made on 20 October 2020. The Agreement expired on 3 September 2016.

[2] On 28 October 2020, I conducted a mention hearing by telephone with Mr Adam Clarkson of the Applicant, in attendance. At the mention, I requested the Applicant provide further information in support of the application. This request was confirmed in writing.

[3] The Form F24C – Statutory declaration (the declaration) lodged with the application confirms that the reason the Applicant seeks for the Agreement to be terminated is that the company will no longer be trading and that they wish to transfer all employees covered to another company and another industrial instrument. The declaration further states that all entitlements will transfer and a pay increase will be implemented as part of the process.

[4] The Agreement covered 21 employees in the waste management and transport industry in Victoria. The Agreement covered mechanics, clerical staff, drivers and yard staff.

[5] On 19 November 2020, the Applicant filed further supporting evidence which confirmed that due to a restructure of directors (namely a retirement) Bin Smart Pty Ltd will no longer employ any staff and will become a holding company. In its place, another related company of the Applicant, Bin Smart Group Pty Ltd, will be the trading company which will employ all staff. The change to the company structure is to take effect from 1 December 2020.

[6] The further material filed by the Applicant contains a copy of the employment contract covering employees. The contract sets out at item 5 to the Schedule, the relevant modern award which applies to the employee. The further material filed also confirms the implementation of the 5% pay increase as a part of the transfer of employment to the new company.
[7] I am satisfied that on assessment of the employment conditions that proper employment standards will be maintained; the rates of pay are higher than the modern award and that termination of the Agreement is not contrary to the objects of the Act.

[8] Furthermore, the Applicant filed written statements made by two current employees subject to the changes which confirm that they understand the consequences of the termination of the Agreement and support the decision to transfer their entitlements to a new industrial instrument. The employees confirm that they understand that all current entitlements will transfer to the new employer entity, that they will receive a 5% pay increase and that their employment will be subject to the new contracts of employment.

[9] Having regard to the fact that the Agreement has passed its nominal expiry date, that the Agreement will be replaced by over award employment contracts underpinned by the safety net of the relevant modern award and that there are no longer any employees who are covered by the Agreement following the restructure of companies, I consider it appropriate to terminate the Agreement.

[10] I have considered the public interest, the materials lodged in support of the application, the views of the employees and employer, the circumstances of those affected by the termination of the Agreement, that the Agreement has passed its nominal expiry date and that there are no employees covered by the Agreement.

[11] Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will operate from 1 December 2020.

COMMISSIONER

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