Carter & Spencer Nth Qld Pty Ltd

[2014] FWCA 1590

[2014] FWCA 1590

FAIR WORK COMMISSION

DECISION

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

Carter & Spencer Nth Qld Pty Ltd
(AG2014/3747)

CARTER AND SPENCER NTH QLD PTY LTD ENTERPRISE AGREEMENT

Storage services
COMMISSIONER SPENCER	BRISBANE, 21 MARCH 2014

Application for termination of the Carter & Spencer Nth Qld Ltd Enterprise Agreement.

[1] Carter & Spencer Nth Qld Pty Ltd (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Carter & Spencer Nth Qld Ltd Enterprise Agreement 1 (the Agreement).

[2] The Agreement has a nominal expiry date of 31 August 2012.

[3] Section 226 of the Act provides:

“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

[4] The Commission is satisfied that an application for termination of an enterprise agreement has been made under s.225 of the Act. The Commission must terminate the Agreement after having taken into account those matters in s.226 of the Act and forming the requisite satisfaction. Each matter will be considered in turn.

[5] Directions were issued on 24 February 2014. The Applicant subsequently filed material in accordance with those Directions.

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[6] The Applicant is the employer, covered by the Agreement. The Applicant submitted that as the Employer covered by the Agreement, it supported the termination.

[7] The employees covered by the Agreement have signified their agreement to the application. Thirteen forms were filed by the Applicant, which were signed by individual employees to indicate their agreement or disagreement with the application. All thirteen forms indicate employee agreement.

[8] The AWU did not file any material in relation to the matter although an opportunity to respond to the application was included in the Directions. The Commission’s Chambers confirmed, by telephone, that the Directions, and material filed by the Applicant, were received by the AWU but that they did not intend to file any material in relation to the matter.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[9] The Applicant declared, in the statutory declaration in relation to termination of an Agreement, filed with the application, that “[A]ll staff previously covered [by] the EA are now under the Storage Services and Wholesale Award 2010”.

[10] This statement was later clarified by the Applicant’s material that, whilst the Applicant conceded that the Agreement remained in operation, because of the operation of s.54(2) of the Act, following the expiry of the Agreement the Applicant proposed to apply the relevant Modern Award, rather than commence negotiations for a replacement Agreement. The Applicant submitted that it held discussions with individual staff and that Individual Flexibility Arrangements (IFAs), under the relevant Modern Award, were entered in to. The effect of the submission by the Applicant was that the terms of the Agreement were inferior to the Modern Award so the Applicant applied the superior conditions.

[11] The Applicant also filed a comparison of the rates applicable under the Agreement, the relevant Modern Award and the current annualised salaries provided to employees under the IFAs.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[12] The Applicant submitted that there was nothing within their knowledge that would be contrary to the public interest in the termination of the Agreement.

Conclusion

[13] The Commission is satisfied that an application for the termination of an enterprise agreement has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[14] The Commission is satisfied that it is not contrary to the public interest to order the termination of the Agreement.

[15] The Commission is satisfied that it is appropriate in all the circumstances and having considered the views of the Applicant, AWU and employees, to terminate the Agreement.

[16] Having considered the material and s.226 of the Act the Agreement must be terminated.

[17] The termination will operate from the date of this decision.

[18] I Order accordingly.

COMMISSIONER

 1   AE879480.

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<Price code A, AE879480  PR548421>