Bushmans Group Pty Limited T/A Bushmans Tanks
[2011] FWA 873
•9 FEBRUARY 2011
[2011] FWA 873 |
|
DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Bushmans Group Pty Limited T/A Bushmans Tanks
(AG2010/18205)
Manufacturing and associated industries | |
COMMISSIONER HARRISON | SYDNEY, 9 FEBRUARY 2011 |
Application for termination of the Grosvenor Tanks Pty Ltd Transport Services Greenfields Agreement 2009.
[1] This decision concerns an application for the termination of the Grosvenor Tanks Pty Ltd Transport Services Greenfields Agreement 2009 (the Agreement) by Bushmans Group Pty Limited (formerly Grosvenor Tanks Pty Limited) (the Company) pursuant to s.225 of the Fair Work Act 2009 (the Act).
Background
[2] The application was made by Bushmans Group Pty Limited. According to Mr Chris Glenn, the Managing Director of Bushmans Group Pty Limited, the Company was placed into receivership and continued to trade in receivership until 30 June 2009.
[3] In existence was a transport workers agreement which expired on 31 December 2009 (AC302740). During and after the receivership period the drivers were covered by this agreement.
[4] On 30 June 2009, Grosvenor Tanks Pty Limited purchased the assets of Bushmans Group Pty Limited from the receiver. Mr Glenn states that Grosvenor Tanks Pty Limited inadvertently established a greenfields agreement which was not required due to the existence of AC302470. Under the transmission of business requirements, the transport workers were transferred under the existing agreement to the new company. Bushmans Group Pty Limited has subsequently been liquidated.
[5] Upon the establishment of the greenfields agreement, there were no employees of Grosvenor Tanks Pty Limited. Since Grosvenor Tanks Pty Limited acquired the assets of Bushmans Group Pty Limited no employees have operated under this Agreement. Grosvenor Tanks Pty Limited has since changed its name to Bushmans Group Pty Limited. Therefore, the Applicant seeks the termination of the Agreement on the grounds that no employees have been covered by the Agreement.
Legislative provisions
[6] Subdivision D of Division 7 of Part 2-4 of the Act 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 FWA 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 FWA must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:
(a) FWA is satisfied that it is not contrary to the public interest to do so; and
(b) FWA 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.
[7] The application has been made by Bushmans Group Pty Limited, who is the only employer covered by the Agreement. In accordance with clause 4.2 of the Agreement, it had a nominal expiry date on the first anniversary it was lodged with the Workplace Authority. Clause 4.3 states that the Agreement will continue until it is terminated or replace by a new enterprise agreement.
[8] There is no information in the application that provides the date of lodgement with the Workplace Authority. The Workplace Authority provided a notice to the Company dated 29 July 2009 pursuant to s.346U of the Workplace Relations Act 1996 that the agreement passed the no-disadvantage test and operated from the date it was lodged. It is plain that the agreement has passed the nominal expiry date.
[9] In order to terminate the Agreement, the Tribunal must be satisfied that it is not contrary to the public interest to do so and that it is appropriate in all the circumstances to do so.
[10] Having regard to all the circumstances, I believe that the termination of the Agreement is not contrary to the public interest.
[11] Given that there are no employees covered by the Agreement, a decision to terminate the Agreement will have no effect on employees.
[12] In light of the information provided to me, it is appropriate to terminate the Agreement pursuant to s.226 of the Act.
[13] In accordance with s.227 of the Act, the termination of the Agreement will take effect from 9 February 2011.
COMMISSIONER
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