Dee Enterprises (Qld) Pty Ltd T/A Meklek

[2015] FWCA 5458

[2015] FWCA 5458

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Dee Enterprises (Qld) Pty Ltd T/A Meklek
(AG2015/2993)

DEE ENTERPRISES (QLD) PTY LTD TRADING AS MEKLEK EMPLOYEE COLLECTIVE AGREEMENT 2008/ 2011

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 27 AUGUST 2015

Application for termination of the Dee Enterprises (Qld) Pty Ltd t/as Meklek Employee Collective Agreement 2008/2011.

Background

[1] On 16 June 2015, Dee Enterprises (Qld) Pty Ltd T/A Meklek (Dee Enterprises) made an application to terminate the Dee Enterprises (Qld) Pty Ltd Trading as Meklek Employee Collective Agreement 2008/2011 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act). Clause 2 of the Agreement states that the correct title of the Agreement is Dee Enterprises (Qld) Pty Ltd AGREEMENT - 2008/2011.

[2] According to its terms, the Agreement came into effect when it was approved by the former Workplace Authority on a date that is unclear, and remained in force until its nominal expiry date of 1 November 2011, when it thereafter remained in effect by virtue of Schedule 3, Item 2(1) of the TPCA Act.

[3] Item 16 of Schedule 3 of the TPCA Act, under which the application is made, provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) 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. Subdivision D of Division 7 of Part 2-4 of the Act deals with the termination of enterprise agreements after nominal expiry date.

[4] The application seeks the retrospective termination of the Agreement with effect from 12 February 2010. In support of the submission that the Agreement should be terminated with effect from that date Dee Enterprises refers to an earlier application made by it on 20 November 2009, which it asserts was not concluded, and submits that the circumstances surrounding that application are exceptional such that retrospectivity should be granted.

[5] The matter has some history. On 20 November 2009, Dee Enterprises applied to the Commission under Item 15 of Schedule 3 of the TCPA Act for the termination of the Agreement. 1 The application was allocated to another member of the Commission. The material on that file indicates that in January and February 2010 a series of correspondence was exchanged between Dee Enterprises and the Commission. On 6 August 2010 the Commission wrote to Dee Enterprises requesting that Dee Enterprises advise by no later than 13 August 2010 whether it intended to proceed with the application. The correspondence of 6 August 2010 advised that if no response was received by 13 August 2010 “the matter will be deemed discontinued”. There was no response to the correspondence of 6 August 2010 and the file was closed.

[6] In 2015 two former employees of Dee Enterprises commenced proceedings in the Federal Circuit Court seeking enforcement of entitlements under the Agreement. Dee Enterprises states that in responding to these applications, it became aware that the Agreement had not been terminated by the Commission in 2009. Dee Enterprises did not seek to reopen the original application but rather filed a further application under s. 222 of the Act. That application indicated that the two employees who had commenced proceedings in the Federal Circuit Court (through their Union) had an interest in the matter. Following a query from Commission staff as to whether an application could be made under s. 222 of the Act in circumstances where the Agreement had passed its expiry date, the application subject of these proceedings was filed.

[7] That application was the subject of a hearing before another Member of the Commission. The two employees with an interest in the matter sought to be heard in relation to the application through a legal representative. The matter was allocated to the Member who had originally dealt with it and then to me, on the basis of a change to the industry panel within the Commission in the intervening period from when the original application was made.

[8] I convened a conciliation conference between Dee Enterprises, the two former employees and the respective legal representatives. The claims of the two employees were settled and their legal representative subsequently advised that they had no further interest in the matter. Dee Enterprises sought to press its 2015 application for termination of the Agreement with retrospective effect, and agreed that I deal with that application by way of a Hearing.

[9] On 10 August 2015 I convened a Hearing in relation to the 2015 application to terminate the Agreement after its nominal expiry date. After reviewing the submissions and material filed by the Applicant in support of the application, I informed Mr Heath, representing Dee Enterprises, that on the basis of the material before me in relation to the 2015 application, I considered it appropriate to retrospectively terminate the Agreement with effect from 2 November 2011, being the nominal expiry date of the Agreement. After seeking instructions, Mr Heath submitted to the Commission that Dee Enterprises agreed with that course and would not press its argument for an earlier date. I also indicated that an order to that effect would be issued. My reasons for taking the unusual step of terminating an Agreement with retrospective effect are as follows.

Legislative provisions

[10] The relevant legislative provisions are found in Chapter 2, Part 2-4, Division 7, Subdivision D as follows:

“Subdivision D—Termination of enterprise agreements after nominal expiry date


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.”

Consideration

[11] The legislative provisions in relation to termination of agreements after nominal expiry date do not preclude the Commission from granting an application with retrospective effect. As a general rule, exceptional circumstances are required before the Commission will make an order terminating an agreement, where that order has retrospective operation. I am satisfied in the circumstances of this case that a retrospective order should be made.

[12] As previously noted an application for termination of the Agreement was made on 20 November 2009. There was correspondence between the Commission and management of Dee Enterprises in relation to that application in which a range of further information was sought and provided. The last piece of correspondence from Dee Enterprises on the Commission’s file in relation to the 2009 application is a letter dated 12 February 2010 responding to a request from the Associate of the Commission Member who was then dealing with the application for information relevant to the determination of the application.

[13] The information provided by Dee Enterprises in the correspondence does not fully address the issues raised in the correspondence from the Commission. The next piece of correspondence is the letter dated 6 August 2010 from the Associate, requesting confirmation that Dee Enterprises wished to proceed with the application and advising that if a response was not received by 13 August 2010 “the matter will be deemed discontinued”. That letter was sent by email to the email address then notified by Dee Enterprises and there is no evidence that it was not delivered. The email also notes that the letter of 6 August 2010 was sent to Dee Enterprises by Post, although the postal address to which the letter was sent is not shown on the letter itself. Instead the letter is addressed to Mr Dee at an email address.

[14] The letter of 6 August 2010 also states that: “The last correspondence on this matter was in late February 2010.” There is no correspondence dated in late February 2010 on the file. When the legal representative of Dee Enterprises took carriage of the matter in 2015, a request was made to the Registry of the Fair Work Commission for copies of correspondence on the Commission’s file. Upon receiving a copy of the letter of 6 August 2010, a further request was made for a copy of the “correspondence on this matter … in late February 2010”.

[15] In response to this request, Registry staff advised the legal representative for Dee Enterprises that the Commission’s case management records in 2010 did not include copies of correspondence and that attempts to locate correspondence dated in late February 2010 in relation to the matter have not been successful.

[16] Mr Dee has provided a sworn statement to the effect that he did not receive the correspondence dated 6 August 2010. Mr Dee also asserts that his prompt response to other correspondence from the Commission in relation to the original application to terminate the Agreement makes it improbable that he would have ignored the letter of 6 August 2010 if he had received it.

[17] In my view, the correspondence from Registry staff in relation to the contents of the file raise the possibility that there is a missing piece of correspondence that may have further alerted Mr Dee to the fact that the file was to be closed. In all of the circumstances of the case, I am prepared to give the Company the benefit of the doubt and to make a retrospective order.

[18] In doing so I am not prepared to make the order operative from 20 February 2010 as sought by Dee Enterprises. That date is the date upon which Dee Enterprises last corresponded with the Commission in response to a request that the Company provide information in relation to the original application. My reason for refusing to make the order operative from this date is that the nominal expiry date for the Agreement is 1 November 2011. The application before me is an application to terminate an agreement that has passed its nominal expiry date. To make an order terminating the Agreement from a date before its nominal expiry date would be inconsistent with the legislative provision under which the application currently before me is made. Further, this is not an application for reopening of the original application and it is not appropriate to make such an order on the basis of the present application. I am prepared to make the Order operative from 2 November 2011, the day after the nominal expiry date.

[19] In relation to the matters in s. 226 of the Act, I am satisfied that termination of the Agreement would not be contrary to the public interest. In this regard I have also considered the interests of the two former employees who made application to the Federal Circuit Court seeking to enforce rights under the Agreement. Those matters have been settled and those employees, who were legally represented, have indicated that they have no further interest in the application for termination of the Agreement. Affidavits have been tendered from two other employees who were employed at that time, indicating that they have no objection to the termination of the Agreement.

[20] Dee Enterprises has provided evidence that in November 2009, employees unanimously agreed to the termination of the Agreement and that the sole remaining employee supports the termination of the Agreement. In all of the circumstances, I am satisfied that the Agreement should be terminated with effect from 2 November 2011. An Order to that effect is issued with this Decision. 2

DEPUTY PRESIDENT

 1   AG2009/14300 Application by Dee Enterprises (Qld) Pty Ltd T/A Meklek.

 2   PR570633.

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