Customs Agency Services Pty Ltd T/A Customs Agency Services

[2022] FWCA 1849

[2022] FWCA 1849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Customs Agency Services Pty Ltd T/A Customs Agency Services

(AG2022/1475)

Customs Agency Services Pty Ltd Agreement 2009

Clerical industry
COMMISSIONER HAMPTON	ADELAIDE, 10 JUNE 2022

Application for termination of the Customs Agency Services Pty Ltd Agreement 2009.

1. This decision concerns an application by Customs Agency Services Pty Ltd T/A Customs Agency Services (the Applicant or Customs Agency Services), in effect, under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Customs Agency Services Pty Ltd Agreement 2009[1] (the Collective Agreement). The Collective Agreement was approved on 7 August 2009 under Part 8 of the Workplace Relations Act 1996 (Cth) by the then Workplace Authority[2]. There is no employee organisation covered by the instrument. The Collective Agreement had a nominal expiry date 4 years from the date of commencement.

1. The Collective Agreement presently covers staff undertaking roles related to international logistics and customs brokerage services.

1. A hearing by MS Teams was conducted in this matter on 8 June 2022. At the conclusion of that hearing, I expressed my intention to terminate the Collective Agreement and indicated that I would subsequently provide a written decision.

1. The Collective Agreement is a collective agreement-based transitional instrument[3] for the purposes of the Fair Work (Transitional Provisional and Consequential Amendment) Act 2009 (the Transitional Act). This means, in effect, that the Collective Agreement remained in force under the terms of the FW Act, subject to certain overriding provisions including the National Employment Standards and the minimum base rates provide by any modern award covering the parties. In this case, the Clerks - Private Sector Award 2020.[4] (Clerks Award 2020) covers the parties although it does not presently apply to them due to the continued operation of the Collective Agreement.[5]

1. Item 16 of Schedule 3 of the Transitional Act provides that an agreement of this kind may be terminated by the Commission under Part 2-4 of the FW Act.

1. Subdivision D of Division 7 of Part 2-4 of the FW Act provides:

“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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

1. The application was accompanied by a statutory declaration of Ms Louise Rigoni a Director of the Applicant, relevantly setting out the grounds for the application to terminate the Collective Agreement. Those grounds included contentions to the effect of the following:

·The Collective Agreement is outdated and was approved prior to the introduction of the FW Act and the now underlying relevant modern award;

·The Applicant intends to modernise and update conditions of employment by the offering of contracts of employment as a means of preserving certain employee entitlements that would be lost by the termination;

·There has been an extensive consultation process with the 41 (or so) employees affected;

·The new arrangements as a package will ensure that the employees are not worse off following the termination; and

·The Clerks Award 2020 is a more contemporary instrument and will be used as a basis for the contracts of employment and this would be consistent with the objects of the FW Act and the public interest.

1. Given the status of the Collective Agreement, Customs Agency Services is entitled to apply for its termination pursuant to s.225 of the FW Act.

1. In the lead up to the hearing of this matter, directions were issued requiring Customs Agency Services to ensure that any affected employees were aware of this hearing and provide details for any affected employee to make a contribution about the application to terminate the agreement. I note that Customs Agency Services has confirmed by an additional Affidavit of Ms Rigoni that all employees were provided a copy of the notice of listing and information was available to explain the application.

1. The Commission did not receive advice from any employee (or employee representative) covered by the Collective Agreement expressing concerns or otherwise wishing to be heard in relation to the application. Given this fact, and the evidence provided by Ms Rigoni, I am satisfied that the employees support, or at least do not oppose, the application.

1. The statutory environment in which the Collective Agreement now operates is significantly different to that in which it was approved. The continued operation of the Collective Agreement also prevents the implementation of the updated contracts of employment and the full application of the Clerks Award 2020.

1. Although Customs Agency Services has applied more beneficial arrangements than required by the Collective Agreement, and largely intends to continue that practice, it is appropriate that what is now a very much outdated and largely redundant instrument no longer apply. Employees will not be disadvantaged by the termination of the instrument and the formal conclusion of the Collective Agreement is sought by the applicant employer. In that regard, Customs Agency Services has also provided an undertaking to the Commission that it will retain all existing higher rates of pay for the current employees. I have accepted that undertaking.

1. Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the Collective Agreement. I am also satisfied that it is appropriate in all of the circumstances, including having regard to the views of the relevant parties, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Collective Agreement.

1. The Collective Agreement is terminated, and the termination will take effect on and from 11:59 pm on 30 June 2022.

COMMISSIONER

[1] AC329265.

[2] The Workplace Authority was an Australian Government Statutory Agency operating prior to the Fair Work Act 2009 coming into operation.

[3] Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[4] MA000038

[5] s.47 and s.48 of the FW Act.

Printed by authority of the Commonwealth Government Printer

<AC329265  PR742367>