Bryan Zelinski Engineering Pty Ltd T/A Bryan Zelinski Engineering

[2019] FWCA 733

[2019] FWCA 733

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

Bryan Zelinski Engineering Pty Ltd T/A Bryan Zelinski Engineering
(AG2018/6646)

BRYAN ZELINSKI ENGINEERING COLLECTIVE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 7 FEBRUARY 2019

Application for termination of the Bryan Zelinski Engineering Collective Agreement.

[1] On 28 November 2018, Bryan Zelinski Engineering Pty Ltd T/A Bryan Zelinski Engineering (the Employer) applied under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Bryan Zelinski Engineering Collective Agreement (the Agreement). The Agreement has passed its nominal expiry date.

[2] No employee organisations are covered by the Agreement.

[3] The application was supported by a document purporting to be a statutory declaration of Mr Bryan Zelinski, Director of the Employer, It was not, however, properly sworn by him and was not in the appropriate form of a statutory declaration. 1

[4] On the material before the Fair Work Commission at the time, I required the Employer to provide all employees covered by the Agreement with a notice inviting them to contact chambers and provide their views on the proposed termination of the Agreement by no later than 19 December 2019.

[5] On 30 January 2019, a Form F24C – Statutory declaration sworn by Mrs Bev Zelinski, Office Manager of the Employer was filed to my chambers. Mrs Zelinski’s statutory declaration declared, amongst other things, that employees are currently paid at rates above those contained in the Agreement, under the Manufacturing and Associated Industries and Occupations Award 2010, the General Retail Industry Award 2010, the Building and Construction General On-site Award 2010 and the Road Transport and Distribution Award 2010 (jointly, “the Awards”).

[6] Mrs Zelinski also declared that the Agreement does not provide better entitlements than the Awards primarily because the Agreement’s nominal expiry date was assumed by the Employer to be 31 December 2012, and since this time the Employer has provided wage increases exceeding the wages required to be paid pursuant to the Agreement.

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 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.

[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 on 30 January 2019, in consideration of s.226(a), I am satisfied that the 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 Awards will have application to the workplace.

[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, 7 February 2019.

COMMISSIONER

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 1   Fair Work Commission Rules 2013 r.8(2).