Blackbutt Logging Pty Ltd

[2017] FWCA 3068

[2017] FWCA 3068

FAIR WORK COMMISSION

DECISION

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

Blackbutt Logging Pty Ltd
(AG2017/1907)

FORUM-B PTY LTD 2005-2011

Timber and paper products industry
COMMISSIONER HUNT	BRISBANE, 9 JUNE 2017

Application for termination of the Forum-B Pty Ltd 2005-2011.

[1] On 29 May 2017, Blackbutt Logging Pty Ltd (the Employer) applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Forum-B Pty Ltd 2005-2011 (the Agreement). The Agreement has passed its nominal expiry date.

[2] On 30 May 2017, the Employer was advised by my Associate that as the Agreement was a collective agreement-based transitional instrument the application would more appropriately be made under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).

[3] On 1 June 2017, the Employer sought leave to amend the application so that it is made under Schedule 3, Item 6 of the Transitional Act.

[4] Section 586 of the Act provides the Commission with a wide discretion to amend an application and I consider it appropriate to do so. The application is amended so that it is made in accordance with Schedule 3, Item 16 of the Transitional Act.

[5] The application was supported by a statutory declaration from the Employer that declared, amongst other things, that employees are currently paid at rates above those contained in the Agreement and the Timber Industry Award 2010 (the Modern Award). It also declared that the Agreement does not provide better entitlements than the Modern Award primarily because the Agreement’s nominal expiry date is 30 May 2011 and since this time the Employer has provided wage increases exceeding the wages required to be paid pursuant to the Agreement.

[6] On 2 May 2017, the Employer conducted a survey of employees covered by the Agreement in relation to the proposal to terminate the Agreement. I have sighted evidence that all eight employees covered by the Agreement wish for the Agreement to be terminated.

Legislative provisions

[7] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work 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.

[8] Chapter 2, Part 2-4, Division 7, Subdivision D is 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.”

[9] Based on the material contained in the statutory declaration filed with the application, and in consideration of s.226(a) of the Act, I am satisfied that 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] 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. With regard to the circumstances of the employees following termination of the Agreement, the Modern Award will have application to the workplace, together with over-award payments.

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

[12] The termination will take effect from today, 9 June 2017.

COMMISSIONER

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<Price code A, AC300319  PR593496>