Caylamax Recycling Pty Ltd

[2015] FWC 3588

[2015] FWC 3588

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Caylamax Recycling Pty Ltd
(AG2015/2341)

CAYLAMAX RECYCLING PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

Retail industry
COMMISSIONER BULL	SYDNEY, 17 JUNE 2015

Application for termination of the Caylamax Recycling Collective Agreement 2007

[1] An application has been made by Caylamax Recycling Pty Ltd (the applicant) pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Caylamax Recycling Collective Agreement 2007 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] Schedule 3, Item 16(1) of the Transitional Act states:

Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) 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.

[4] Section 225 of the Act states:

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 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] The applicant, being the employer covered by the Agreement, has the necessary standing to bring the application. The applicant submits that the Agreement has passed its nominal expiry date of 18 May 2012.

[6] Section 226 of the Act sets out the requirements to be met before the Fair Work Commission (the Commission) can terminate an agreement where an application is made under s.225.

226 When FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.

[7] On 22 May 2015, correspondence was sent to the applicant requesting further correspondence with respect to s.226 of the Act. In particular, the applicant was requested to address the public interest, the views of the employees and the circumstances of the employees, including the likely effect the termination of this Agreement would have on each of them.

[8] Correspondence addressing this issue was received from the applicant on 25 May 2015. The applicant advised that four employees are covered by the Agreement and all four employees have expressed support for this application.

Background

[9] The applicant has lodged a new enterprise agreement “Caylamax Recycling Collective Agreement 2015” (the Replacement Agreement)for approval by the Commission, which the applicant submits offers greater entitlements than the Agreement which is the subject of this application.

Applicant’s submissions

[10] The applicant submits that no employees will be disadvantaged by the termination of the Agreement, as they will be paid and work under the conditions in the Replacement Agreement. Further, the applicant submits that employees are currently being paid in excess of the pay rates contained in the Agreement and above the minimum of the Replacement Agreement.

[11] The applicant provided a signed acknowledgment by the four employees subject to the Agreement which states they are aware that the Agreement will remain in force until the Replacement Agreement has been approved by the Commission.

[12] Taking into account the submissions of the applicant and materials provided, I am satisfied that the requirements of s.226 of the Act have been met including that termination of the Agreement is not contrary to the public interest.

[13] I note that there are no employee organisations that are covered by the Agreement.

[14] The application to terminate the Agreement is approved.

[15] In accordance with s.227 of the Act, the operative date of the termination of the Agreement will coincide with the operation of the Replacement Agreement AG2015/2340 [PR568037] being 24 June 2015.

COMMISSIONER

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