Bristol-Myers Squibb Company T/A Bristol-Myers Squibb Australia Pty Ltd

[2019] FWCA 6314

[2019] FWCA 6314

FAIR WORK COMMISSION

DECISION

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

Bristol-Myers Squibb Company T/A Bristol-Myers Squibb Australia Pty Ltd
(AG2019/2966)

BRISTOL-MYERS SQUIBB PHARMACEUTICALS, NUW AND AMWU ENTERPRISE AGREEMENT 2006

Pharmaceutical industry
COMMISSIONER CIRKOVIC	MELBOURNE, 17 SEPTEMBER 2019

Application for termination of the Bristol-Myers Squibb Pharmaceuticals, NUW and AMWU Agreement 2006.

[1] Bristol-Myers Squibb Company T/A Bristol-Myers Squibb Australia Pty Ltd (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Bristol-Myers Squibb Pharmaceuticals, NUW and AMWU Agreement 2006(the Agreement).

[2] The Agreement has a nominal expiry date of 31 March 2010.

[3] The Applicant filed a statutory declaration of Ms Sara Giesen, declared 12 August 2019 (Statutory Declaration).

Legislation

[4] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passes its nominal expiry date. Section 225 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.”

[5] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

[6] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.225(a) of the Act.

Public Interest

[7] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that termination will not be contrary to the public interest, as there are no employees covered by the Agreement and the Applicant has no intention of reinstating its manufacturing/warehousing divisions in the future, which were divested in 2009. Further, termination will not affect the working conditions of the Applicant’s employees.

[8] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to s.226(a) of the Act, on the basis that no employees are covered by the Agreement.

Views, Circumstances and Likely Effect of Termination

[9] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers (NUW) are an organisations which are covered by the Agreement. On 16 August 2019 my chambers emailed the AMWU and NUW seeking their views on whether the termination application is opposed. On 19 August 2019 the AMWU emailed my chambers confirming that it does not oppose the termination application. The NUW did not reply.

[10] The Applicant is the employer covered by the Agreement. The Applicant declares in its Statutory Declaration that as there are no employees covered by the Agreement, there will be no effect on employees; the Agreement is outdated and no long relevant to the Applicant’s operations.

[11] I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[12] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

[13] An Order will be issued terminating the Agreement with effect from 17 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AG848949  PR712269>