Cubis Systems Australia Pty Ltd T/A Cubis Systems Australia

[2022] FWCA 875

[2022] FWCA 875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Cubis Systems Australia Pty Ltd T/A Cubis Systems Australia

(AG2022/523)

BVCI Pty Limited (HEATHWOOD) Enterprise Agreement 2019

Manufacturing and associated industries
COMMISSIONER SPENCER	BRISBANE, 16 MARCH 2022

Application for termination of the BVCI Pty Limited (Heathwood) Enterprise Agreement 2019.

1. An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Cubis Systems Australia Pty Ltd T/A Cubis Systems Australia (the Applicant) to terminate the BVCI Pty Limited (Heathwood) Enterprise Agreement 2019 (the Agreement).

1. The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 30 June 2021.

1. 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 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.”

1. Ms Melissa Hume, Director of Human Resources for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Ms Hume stated that the application to terminate the Agreement was made on the basis that the Applicant’s labour force had been operating under two separate agreements, and that this was causing an administrative burden for the Applicant.

1. Ms Hume stated that the termination would not be contrary to the public interest, on the basis that there were no current employees covered by the Agreement. Ms Hume stated that twelve employees who were previously covered by the Agreement had transferred to one of the Applicant’s other Agreements, effective from 28 February 2022.

1. Ms Hume stated the twelve employees had transferred their employment to the existing, Holmes Nominees (Aust) Pty Ltd Collective Agreement 2018-2022 (existing Agreement), which has a nominal expiry date of 30 June 2022. It was further stated that the employees transferred their employment to this existing Agreement at their own volition.

1. Ms Hume stated that all twelve employees agreed to the transfer in writing, having received and reviewed documents from the Applicant that set out their employment conditions, including a summary of the increase of their base rates of pay, the commensurate grade classification, changes to any applicable allowances and the total increase in their overall earning. Ms Hume stated that the average increase in total annual ordinary earnings per person was $3,574.13. A copy of the comparison documents that were sent to each relevant employee, and a copy was provided to the Commission.

1. Ms Hume confirmed that the Agreement had passed its nominal expiry date, and that no employees were currently employed under the terms of the Agreement, nor was there any intention by the Applicant to engage any employees under the Agreement in the future.

1. It was submitted on behalf of the Applicant, that the termination of the Agreement would not have any effect on any employees, as there are no employees covered by the Agreement, nor will there be in future.

1. Taking into account the information provided in response to the matters in s.226 of the Act, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 16 March 2022.

1. I Order accordingly.

COMMISSIONER

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