Bridgestone Earthmover Tyres Pty Ltd

[2017] FWCA 3753

[2017] FWCA 3753

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Bridgestone Earthmover Tyres Pty Ltd
(AG2017/2761)

QUEENSLAND FERTILIZER PROJECT MT ISA SULFURIC ACID PLANT BRIDGESTONE EARTHMOVER TYRES PTY LTD PARTNERSHIP CERTIFIED AGREEMENT 1997

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 28 JULY 2017

Application for termination of the Queensland Fertilizer Project Mt Isa Sulfuric Acid Plant Bridgestone Earthmover Tyres Pty Ltd Partnership Certified Agreement 1997.

[1] On 11 July 2017, Bridgestone Earthmover Tyres Pty Ltd (the Employer) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Queensland Fertilizer Project Mt Isa Sulfuric Acid Plant Bridgestone Earthmover Tyres Pty Ltd Partnership Certified Agreement 1997 [AG794267](the Agreement).

[2] The application was supported by a statutory declaration from the Employer that declared, amongst other things, that there are no employees who are covered by the agreement. The Employer also declared that there was no known nominal expiry date of the Agreement as there was no available copy of the Agreement.

[3] The Australian Workers’ Union (AWU) are an employee organisation which is covered by the Agreement. In correspondence to my Chambers on 26 July 2017, the AWU advised that it does not oppose the termination of the Agreement.

Legislative provisions

[4] 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 2009 (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.

[5] 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.”

[6] There is no known copy of the Agreement as it is around 20 years old. In consideration of the age of the Agreement, I am satisfied it has expired.

[7] 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.

[8] 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.

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

[10] The termination will take effect from today, 28 July 2017.

COMMISSIONER

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<Price code A, AG794267  PR594618>