Choice Homes (Qld) Pty Ltd

[2013] FWCA 9695

[2013] FWCA 9695

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

Choice Homes (Qld) Pty Ltd
(AG2013/10359)

CHOICE HOMES (QLD) PTY LTD WORKPLACE AGREEMENT 2007

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 16 DECEMBER 2013

Application for termination of the Choice Homes (Qld) Pty Ltd Worplace Agreement 2007.

[1] This is an application by Choice Homes (Qld) Pty Ltd (Choice Homes) to terminate the Choice Homes (Qld) Pty Ltd Workplace Agreement 2007 1(the Agreement) pursuant to Fair Work Act 2009 (the Act), consequent upon the transitional provisions within Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[2] The application was listed for hearing on 16 December 2013, subject to:

● Advice to the applicant that it would need to address the statutory matters within s.226 in the hearing; and

● A direction that Choice Homes:

“1. provide all employees covered by the Agreement with a copy of its application to terminate the Agreement, a copy of the notice of listing and a copy of this direction;

2. provide advice to all employees covered by the Agreement that if they have any views about the termination of the Agreement, they will have the opportunity to put those views to the Fair Work Commission (the Commission) in the hearing on 16 December 2013 or by email to Senior Deputy President Watson at [email protected]; and

3. provide evidence of compliance with directions 1 and 2 at the hearing on 16 December 2013.”

[3] The hearing of 16 December 2013 was cancelled on 11 December 2013, on the basis of information provided by Choice Homes on 10 December 2013, subject to a direction by the Commission that it advise all employees that any views they wished to bring to the attention of the Commission should be provided by email to my Chambers.

Statutory matters

[4] The relevant provisions of the Act are 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.”

Consideration

[5] In written materials provided Choice Homes contended that the termination of the Agreement should not have a negative impact on the current pay and entitlements of employees currently covered by the Agreement.

[6] On 10 December 2013 Choice Homes provided a statutory declaration of Ms J Golato, its Financial Accountant, which attested to the following matters:

● The Agreement has passed its nominal expiry date of 30 June 2010;

● The new standard will be the relevant modern award;

● All staff were advised of the company’s intention to apply to terminate the Agreement;

● No employee raised any concern about the termination of the Agreement with the company;

● The company complied with the directions of the Commission to provide advice to employees of the application, the notice of listing and the opportunity and means of expressing a view to the Commission;

● No employee has expresses an objection to the termination; and

● Upon the termination of the Agreement, employees terms and conditions will be governed by the applicable relevant award.

[7] No employee took the opportunity to express a view in relation to the termination of the Agreement.

[8] I am satisfied that:

● the Agreement has passed its nominal expiry date (30 June 2010). 2

● Choice Homes is covered by the Agreement and entitled to bring its application.

[9] The terms of the Agreement, which were fixed in 2007 were made in a different statutory context.

[10] The Agreement covers a range of classifications and occupations, 3 across various departments - Management, Clerical, Sales, Drafting/Estimating, Information Technology and Construction (Supervisors only) - with some employees not subject to modern award coverage but with most being covered by a modern award. The minimum wage rates in the Agreement are in many cases below those in the relevant modern awards and, in some cases, less than the national minimum wage (currently $16.37 per hour). As such the relevant employees are entitled to a minimum wage of not less than the base rate of pay that would be payable to the employees under the modern awards (for those covered by a modern award)4 or the national minimum wage (for those not covered by a modern award),5 as will be the case upon the termination of the Agreement.

[11] Other Agreement provisions are less beneficial than those provided for by relevant modern awards or the National Employment Standards (NES). In the latter respect, the Agreement excluded Protected National Conditions 6 and provides for 40 ordinary hours of work,7 provisions which have no current effect, with the NES prevailing, where relevant,8 in light of s.56 of the Act. In respect of these matters, the termination of the Agreement will not affect the entitlements of employees.

[12] Having regard to the views of Choice Homes, the absence of any views expressed by employees and the circumstances of Choice Homes and the employees, including the likely effect that the termination will have on each of them, I am satisfied that it is appropriate to terminate the Agreement and it is not contrary to the public interest to do so.

Conclusion

[13] I will terminate the Choice Homes (Qld) Pty Ltd Workplace Agreement 2007. The termination will take effect from today’s date, 16 December 2013.

SENIOR DEPUTY PRESIDENT

 1 AC312438.

 2   Clause 4 of the Agreement.

 3   Clause 19 of the Agreement.

 4   Section 206(1) and (2) of the Act.

 5   Section 206(3) and (4) of the Act.

 6   Section 354 of the Workplace Relations Act 1986. See clauses 5.2 and 5.3 of the Agreement.

 7   Clause 20 of the Agreement.

 8   For example, s.62 of the Act in relation to maximum weekly hours.

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<Price code A, AC312438  PR545541>