Brand Collective Pty Ltd T/A Brand Collective

[2023] FWCA 2396

[2023] FWCA 2396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Brand Collective Pty Ltd T/A Brand Collective

(AG2023/2281)

BRAND COLLECTIVE PTY LTD AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT (ALTONA NORTH) 2019

Retail industry
COMMISSIONER CIRKOVIC	MELBOURNE, 1 AUGUST 2023

Application for termination of the Brand Collective Pty Ltd and National Union of Workers Enterprise Agreement (Altona North) 2019

1. Brand Collective Pty Ltd T/A Brand Collective has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Brand Collective Pty Ltd and National Union of Workers Enterprise Agreement (Altona North) 2019 (the Agreement). The Agreement has passed its nominal expiry date of 30 June 2023 and the Applicant is the employer covered by the Agreement.

1. Section 225 of 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.”

1. Section 226 of the Act provides as follows:

“226      Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)  the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)  all of the following apply:

(i)  the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)  the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)  if the agreement contains terms providing entitlements relating to the termination of employees' employment--each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)  This subsection covers a termination of the employment of an employee:

(a)  at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)  because of the insolvency or bankruptcy of the employer.

(3)  In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)   the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c)  each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)  In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)  whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)  whether bargaining for the proposed enterprise agreement is occurring; and

(c)  whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)  In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. The statutory declaration filed by the Applicant, signed 7 July 2023, declared that there are no employees still covered by the Agreement, or likely to be covered by the Agreement in the future.

1. Pursuant to s.183 of the Act, the United Workers’ Union (formerly the National Union of Workers) (the Union) are covered by the Agreement.

1. On 20 July 2023, my chambers emailed the Union seeking their views on the termination application. On 1 August 2023, a response was received from Mr Mick Power of the United Workers’ Union who informed my chambers that the Union had no objection to the termination of the Agreement.

1. Based on the material contained in the statutory declaration of Mr Boris Rozenvasser filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those set out in the Form 24B and Form 24C, I consider that it is appropriate to terminate the Agreement under s226 of the Act.

1. The termination is effective from today.

COMMISSIONER

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