Corning Optical Communications Pty Ltd

[2017] FWCA 6673

[2017] FWCA 6673

FAIR WORK COMMISSION

DECISION

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

Corning Optical Communications Pty Ltd
(AG2017/4817)

Corning Optical Communications Enterprise Agreement 2015

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 21 DECEMBER 2017

Application for termination of the Corning Optical Communications Enterprise Agreement 2015.

[1] On 11 October 2017, Corning Optical Communications Pty Ltd (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) for the termination of the Corning Optical Communications Enterprise Agreement 2015 (Agreement).

[2] The Agreement came into operation on 21 April 2015 with a nominal expiry date of 31 March 2017.

[3] The Applicant filed a statutory declaration of Desiree Kisnorbo, Human Resource Manager for the Applicant, declared 2 October 2017 (Statutory Declaration).

Legislation

[4] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passes its nominal expiry date. Section 225 is 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.”

[5] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

[6] On 27 October 2017, my chambers sent correspondence to the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the National Union of Workers (NUW) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), who are the employee organisations covered by the Agreement. In this correspondence, I sought a response from the AMWU, NUW and CEPU as to whether the Unions opposed the application. I sought that a response be provided by no later than close of business on Friday, 3 November 2017.

[7] No response was received.

[8] On 6 November 2017, my chambers sent correspondence to the employee organisations covered by the agreement referred to above. In this correspondence, the employee organisations were provided with a further opportunity to advise whether they had any objections to the termination by no later than close of business on Tuesday, 14 November 2017.

[9] On 8 November 2017, the CEPU sent correspondence to my chambers advising that they no longer had members covered by the Agreement and that they made “no submissions in opposition to the Application.”

[10] On 30 November 2017, my Associate telephoned the AMWU and spoke with Mr C. Kelly, Victorian Assistant State Secretary. Mr Kelly advised that subject to any objections raised by the NUW that the AMWU did not object to the application.

[11] On 1 December 2017, the NUW wrote to my chambers and confirmed that they did not oppose the application.

[12] Subsequently, on 1 December 2017, I issued directions to be sent to the employees, the Applicant and the employee organisations covered by the Agreement, attaching a copy of the application and statutory declaration filed by the Applicant. The directions provided that if any party opposed the application, advice was to be given to my chambers by close of business on Friday, 8 December 2017.

[13] On 5 December 2017, the Applicant’s representative, Mr Dalton from Ai Group, sent correspondence to my chambers confirming that he had been instructed by the Applicant that the directions issued on 1 December 2017 had been complied with.

[14] There was no material filed by any employee.

Consideration

Standing

[15] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.225(a) of the Act.

Public Interest

[16] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that the Agreement has passed the nominal expiry date.

[17] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to s.226(a) of the Act, on the basis of the material before the Commission.

Views, Circumstances and Likely Effect of Termination

[18] The Applicant is the employer covered by the Agreement. The Applicant in its statutory declaration declares that they previously operated a manufacturing facility at 74-84 Main Road, Clayton Site and that in July 2017, the Applicant ceased its manufacturing operations. The Applicant further declares that all but three remaining Clerical and Administrative employees were made redundant. The Applicant declares that if any employee was employed by the Applicant in the future to perform work which is currently covered by the Agreement (an event which is not currently in contemplation by the Applicant), they would be covered by the Manufacturing and Associated Industries and Occupations Award 2010 (Award), and be entitled to minimum terms and conditions in accordance with the Award, together with the National Employment Standards (NES). The Applicant submits that this is consistent with Object 3(b) of the Act.

[19] The Applicant also declares that bargaining for a future enterprise agreement would remain available should any employees commence employment with the Applicant in the future. The Applicant declares that this is consistent with Object 3(f) of the Act.

[20] I note that no objections were received from any employee organisations covered by the Agreement nor was there any material filed in opposition to the application by the employees covered.

[21] As outlined above at paragraphs [12] – [14], I am satisfied the employees were on notice as to the application before me and had a reasonable time to file material should they have wished to do so.

[22] There is no material before me to indicate what rates are currently being paid to employees covered by the Agreement, but I am satisfied I can reasonably conclude, based on a reading of its terms, that if the Award was to apply to the employees, they would not be left with conditions less favourable than those they currently enjoy. In any event, the Act contemplates the Award and NES applying as the safety net, in the event of termination of the Agreement.

[23] I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[24] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

[25] An Order 1 will be issued terminating the Agreement with effect from 21 December 2017.

COMMISSIONER

 1   PR598958.

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<Price code A, AE413519  PR598657>