Condari Pty Ltd T/A Condari

[2017] FWCA 2368

[2017] FWCA 2368

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

Condari Pty Ltd T/A Condari
(AG2017/635)

CONDARI PTY LTD (ARGENT PLACE) CERTIFIED AGREEMENT 2004

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 6 JUNE 2017

Application for termination of the Condari Pty Ltd (Argent Place) Certified Agreement 2004.

[1] An application has been made pursuant to Schedule 3, Item 15 of the Fair Work

(Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act) to terminate the Condari Pty Ltd (Argent Place) Certified Agreement 2004 (the Agreement). The nominal expiry date of the Agreement is 20 December 2007.

[2] Schedule 3, Item 15 of the TPCA Act provides that Subdivision C of Division 7 of Part 2-4 of the Act (which deals with termination of enterprise agreements by employers and employees) 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

[3] Subdivision C of Division 7 of Part 2-4 of the Act sets out the specific requirements that must be met in relation to the termination of an enterprise agreement by employers and employees.

[4] The relevant legislation provides that I must approve the termination of the Agreement if I am satisfied that each of the requirements of section 223 of the Fair Work Act 2009 (the Act) have been met. Section 223 provides as follows:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[5] Mr Nathan Edwards, National Technical and Production Manager of the Applicant, provided a statutory declaration outlining the process undertaken by the Applicant. On 21 December 2016, the employees covered by the Agreement were each provided with a document which explained that the Agreement would no longer cover them and that their employment would revert to the terms and conditions set out in the applicable Modern Award or another enterprise agreement. Each employee was given until 30 January 2017 to return the document either signed or unsigned.

[6] Based on the material before me, including the aforementioned statutory declaration I am satisfied that:

a) The Applicant has complied with s.220(2);

b) The termination was agreed to in accordance with s.221(1); and

c) There are no other reasonable grounds for believing that the employees have not agreed to the termination.

[7]
I consider that it is appropriate to approve the termination noting that no employee organisation is covered by the Agreement. In the circumstances, I must approve the termination and I do so. The termination of the Agreement is approved with effect from 6 June 2017.

DEPUTY PRESIDENT

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