ColourPress Pty Ltd (West Australian Newspapers Limited) T/A ColourPress
[2018] FWCA 1894
•29 march 2018
| [2018] FWCA 1894 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
ColourPress Pty Ltd (West Australian Newspapers Limited) T/A ColourPress
(AG2018/546)
ColourPress Production Employees Enterprise Bargaining Agreement 2013
| Publishing industry | |
| Deputy President Beaumont | PERTH, 29 march 2018 |
Application for termination of the ColourPress Production Employees Enterprise Bargaining Agreement 2013.
This decision concerns an application made by ColourPress Pty Ltd (West Australian Newspapers Limited) (the Applicant) on 16 February 2018 for the termination of the ColourPress Production Employees Enterprise Bargaining Agreement 2013 (the ColourPress Agreement) made under s.225 of the Fair Work Act 2009 (the Act).
This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.
Having considered all the circumstances of this case, I am satisfied that the termination of the ColourPress Agreement is not contrary to the public interest and I consider it appropriate to terminate it.
Accordingly, the ColourPress Production Employees Enterprise Bargaining Agreement 2013 is terminated and pursuant to s.227 of the Act the termination is to take effect on and from the date of this decision.
Background
ColourPress is an associated entity of West Australian Newspapers Limited (WAN). It is said that the application to terminate is designed to consolidate the production functions of both entities into one operation, namely WAN. It follows that terminating the ColourPress Agreement would allow for a single agreement, the West Australian Newspapers Production Employees Enterprise Agreement 2015 (WAN Agreement) to be the source of rights and obligations between WAN and its existing employees and the transferring ColourPress employees (affected employees).
Fourteen days after a decision approving the termination of the ColourPress Agreement is handed down the affected employees will, according to the Applicant, transfer employment from the Applicant to WAN and be covered by the WAN Agreement.
It is said that the WAN Agreement provides for terms which are the same or better than those set terms and conditions, when considered on an overall basis, in the ColourPress Agreement.
The nominal expiry date of the ColourPress Agreement is 31 March 2016.
The application was accompanied by two statutory declarations dated 15 February 2018 and 9 March 2018 respectively and made by an appropriate person authorised by the Applicant, namely Ms Marija Muccilli, Senior Human Resources Business Partner, WAN[1].
As noted in the statutory declaration of Ms Muccilli, a secret ballot of affected employees was conducted during 7-12 February 2018 at the Herdsman Print Centre[2]. Affected employees were asked the following question[3]:
Do you agree to terminate the Colourpress Production Employees Enterprise Bargaining Agreement 2013 (AG2016/3995)?
The details of the ballot were as follows[4]:
What was the number of employees who were eligible to vote?
98.
What was the number of employees who cast a valid vote?
74.
What was the number of employees who voted in favour of termination?
61.
What was the number of employees who voted against termination?
13.
Further, as part of this process, affected employees were offered conditional offers of employment with WAN under the WAN Agreement should the Commission approve the application to terminate the ColourPress Agreement. The Commission was provided with a sample of the offer[5].
As noted in the materials filed in support of this application, 100% of affected employees signed their conditional offers of employment[6].
On 21 February 2018, my Chambers wrote to the Australian Manufacturing Workers' Union (AMWU), the employee organisation covered by the ColourPress Agreement, to obtain their view on the application. On 7 March 2018, the AMWU responded to the Commission confirming that it did not oppose the Applicant's application to terminate the ColourPress Agreement.
Legislative framework
Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.
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.
In CFMEU v Peabody Energy Australia PCI Mine Management Pty Ltd[7], the Full Bench of the Commission observed that s.226 is a ‘narrow’ discretionary consideration directed to the satisfaction of the factual matters set out within the section[8].
The Agreement termination is not contrary to the public interest
The Applicant has submitted that the application for termination of the ColourPress Agreement is not contrary to the public interest as industrial standards are maintained. This is because the affected employees will, 14 days after a termination decision is handed down by the Commission, transfer to the WAN Agreement. It is said that the WAN Agreement:
· is a "Fair Work Instrument" made and approved under the FW Act, within the meaning of that term as set out in section 12 of the FW Act;
· is an in term agreement, expiring on 1 January 2020;
· is underpinned and was approved on a "better off overall basis" when compared to the relevant modern award under the modern award system established by the FW Act; and
· is an agreement capable of renegotiation or renewal under the auspices of the FW Act, which current ColourPress Agreement covered employees will be able to participate in, if the ColourPress Agreement is terminated, and the consequential transfers of employment take effect[9].
I am satisfied that there will be no loss of various industrial standards and that the WAN Agreement is capable of renegotiation under the Act. In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
Circumstances of affected employees, the employer and employee organisations
Employee circumstances
With regard to the view of affected employees, the secret ballot result showed that a majority of employees were in favour of the ColourPress Agreement being terminated. Further, 100% of the affected employees signed their conditional offers of employment. These factors weigh in favour for terminating the ColourPress Agreement.
With regard to the likely effect that the termination of the ColourPress Agreement would have on the affected employees, I am of the view that the WAN Agreement and the conditional offer of employment provides for terms and conditions which are the same or better than those out in the ColourPress Agreement, when considered on an overall basis.
Accordingly, based on these circumstances, I am satisfied that the termination of the Agreement will not have adverse consequences to the circumstances of affected employees currently covered by the ColourPress Agreement.
Employer circumstances
The Applicant has confirmed that it does not consider itself as being adversely affected by the termination of the Agreement. Accordingly, this is a neutral factor towards the assessment of the application.
Employer organisation circumstances
The AMWU have not opposed the application and it is duly observed that this employee organisation is also covered by the WAN Agreement. It follows that the AMWU will have an ongoing role in representing the industrial interests of the Applicant's transferring employees when they commence employment with WAN under the WAN Agreement.
Based on these circumstances, I am satisfied that these considerations weigh in favour of terminating the ColourPress Agreement particularly given the view of the AMWU and noting that there are no adverse impacts to the circumstances of the AMWU that arise from approving the application to terminate.
Conclusion
Based on the evidence before me, I am satisfied that the application to terminate the ColourPress Agreement is not contrary to the public interest and is supported by a majority of affected employees and the AMWU.
The termination of the ColourPress Agreement will result in the affected employees being covered by the WAN Agreement. The WAN Agreement provides for the same or better terms and conditions of employment, considered on an overall basis, when compared to the ColourPress Agreement.
Further, the AMWU being an employee organisation covered by the ColourPress Agreement is, in addition, covered by the WAN Agreement. Therefore, were the termination of the ColourPress Agreement to proceed the AMWU would still have an ongoing role representing the industrial interests of the Applicant’s transferring employees.
It follows that I am satisfied that the termination of the ColourPress Agreement is not contrary to the public interest and I consider it appropriate to terminate it.
DEPUTY PRESIDENT
[1] Statutory Declaration of Ms Marija Muccilli dated 15 February 2018 (Feb Statutory Declaration Muccilli); Statutory declaration of Ms Marija Muccilli dated 9 March 2018 (Statutory Declaration Muccilli) [2].
[2] Statutory Declaration Muccilli [7].
[3] Ibid Annexure MM-3.
[4] Ibid [7].
[5] Ibid MM-2.
[6] Feb Statutory Declaration Mucilli [2.1].
[7] [2016] FWCFB 3591 [16]-[18].
[8] AWX Pty Ltd [2013] FWCFB 8726; Construction, Forestry, Mining and Energy Union v AGL Loy Yang Pty Ltd t/a AGL Loy Yang [2017] FWCFB 1019 [26].
[9] Submission in Support of Agreement Termination [11].
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