Costa's T/A Costa's Logistics

[2014] FWCA 2242

[2014] FWCA 2242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for approval of a termination of an enterprise agreement

Costa's T/A Costa's Logistics
(AG2014/3869)

COSTA LOGISTICS PTY LTD - DERRIMUT DISTRIBUTION CENTRE NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2011

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COMMISSIONER ROE	MELBOURNE, 3 APRIL 2014

Application for termination of the Costa Logistics Pty Ltd - Derrimut Distribution Centre National Union of Workers Enterprise Agreement 2011.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) by Costa Logistics Pty Ltd (the Applicant) to terminate the Costa Logistics Pty Ltd - Derrimut Distribution Centre National Union of Workers Enterprise Agreement 2011(the Agreement). The nominal expiry date of the Agreement is 30 September 2012.

[2] The Application was originally made pursuant to Section 222 of the Act but I have decided to waive any procedural rules to allow the amendment of the Application at the request of the Applicant so that it is an Application pursuant to Section 225 of the Act. I have done this for a number of reasons including that as no employees are employed under the Agreement at this time it is not possible to conduct the ballot required to terminate an Agreement pursuant to Section 222 and it is possible to make an Application under Section 225 given that the Agreement has past its nominal expiry date.

[3] Sections 225 and 226 of the Act provide:

“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 FWA 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 FWA must terminate an enterprise agreement

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

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

(b) FWA 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.”

[4] The Respondent has provided a Statutory Declaration that all employees of the company at the Derrimut site were made redundant from 31 January 2014. The Agreement only applies to that site. There is therefore no one employed or able to employed under the Agreement. The NUW has been involved in the redundancy process. I provided the NUW with several opportunities to make any objection or to comment on the statement of the Respondent that the NUW supported the termination of the Agreement. I listed the matter for hearing in Chambers to provide any interested party with an opportunity to make further submission or object to the Application. I considered it inappropriate to require the Respondent to attend for a hearing if this was not necessary. No objections have been received.

[5] I am satisfied that it is not contrary to the public interest to terminate the Agreement given that there are no employees covered by the Agreement or who could be covered by the Agreement given that all employees at the site have been made redundant.

[6] I have taken into account, to the extent it is possible, the views of affected employees, the employer and the NUW. I do not consider that the termination will have any negative effect on the relevant parties.

[7] Having considered all the matters required under Section 226 of the Act and being satisfied that the Application has been made pursuant to Section 225 I am satisfied that I am required to terminate the Agreement.

[8] Pursuant to s.226 of the Act, the Fair Work Commission orders that the Agreement be terminated with effect from 3 April 2014.

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