DRW Investments Pty Ltd T/A Wettenhalls

Case •

[2018] FWCA 4905

•

22 AUGUST 2018
[2018] FWCA 4905

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

DRW Investments Pty Ltd T/A Wettenhalls

(AG2018/427)

WETTENHALLS GROUP GOODMAN FIELDER (NSW) ENTERPRISE AGREEMENT 2011

Road transport industry

COMMISSIONER CAMBRIDGE

SYDNEY, 22 AUGUST 2018

Application for termination of the Wettenhalls Group Goodman Fielder (NSW) Enterprise Agreement 2011.

  1. This matter involves an application taken under s. 225 of the Fair Work Act 2009 (the Act), for the termination of an enterprise agreement after its nominal expiry date. The application was filed with the Fair Work Commission (the Commission) at Sydney on 8 February 2018. The application was made by DRW Investments Pty Ltd T/A Wettenhalls (Wettenhalls or the employer) and it seeks the termination of an enterprise agreement known as the Wettenhalls Group Goodman Fielder (NSW) Enterprise Agreement 2011 (the 2011 NSW EA).

  1. The 2011 NSW EA covers, inter alia, the Transport Workers' Union of Australia (TWU), and on 19 February 2018, the TWU advised the Commission and Wettenhalls that it opposed the application to terminate the 2011 NSW EA. On 8 March 2018, proceedings in the matter commenced when the Commission held a Conference at which time permission was granted pursuant to s. 596 of the Act, for the employer to be represented by Mr D Houlihan, agent, from First IR Consultancy Pty Ltd (First IR). Mr G Webb and Mr M Smallwood appeared at the Conference on behalf of the TWU.

  1. During the Conference proceedings held on 8 March, the TWU outlined the basis upon which it objected to the termination of the 2011 NSW EA. Wettenhalls rejected various submissions made by the TWU, and it pressed for its application to be determined. Consequently, the Commission made Directions providing for the filing and service of the Parties’ respective evidence and other materials prior to a Hearing which was fixed for 7 May 2018.

  1. On 3 May 2018, the TWU advised the Commission that the Parties had reached a consent position to have the application dealt with upon the filed documentary material, and without any requirement for the Hearing that had been scheduled. Accordingly, the Hearing was vacated, and the matter has been determined by way of examination and consideration of the documentary material provided by the Parties.

  1. Wettenhalls provided documentary evidence in the form of an undated and unsigned statement of Michael Lean, the Chief Executive Officer of the employer, and additionally a Statutory Declaration (Form F24C) of Mr Lean dated 8 February 2018, has been relied upon in support of the application. Further, documentary submissions were made on behalf of Wettenhalls and provided by First IR on 28 March and 3 May 2018. The TWU provided documentary evidence by way of a statement of Mr Grant Rodger signed and dated 26 April 2018, together with an outline of submissions of the same date.

Relevant Factual Background

  1. The employer is an integrated transport and logistics Company that operates from bases located in Victoria, New South Wales and Queensland. The employer is currently a Party to two enterprise agreements which cover the work undertaken in respect of its transport and logistics operations. The most recent enterprise agreement is the Wettenhalls National Enterprise Agreement 2017 (the 2017 National EA), which was approved by the Commission on 9 August 2017. The other enterprise agreement is the subject of this application for termination, the 2011 NSW EA.

  1. There has been a history of separate industrial regulation for the employer’s New South Wales operations as opposed to elsewhere in Australia. In particular, the employer’s operations in NSW which are conducted in connection with a contract that it has entered into with the Goodman Fielder Company (the Goodman Fielder NSW contract), have been governed by enterprise agreements, the scope of which are confined to work undertaken in connection with the Goodman Fielder NSW contract. This specific and confined scope is reflected in clause 4 of the 2011 NSW EA which is in the following terms:

“4.      Scope and Application

4.1 This agreement applies to the Company and all employees employed in one of the classifications contained in this agreement who are performing their duties as part of the Goodman Fielder (NSW) Contract.

4.2 The Scope of this agreement is limited to employees who are engaged to perform their duties within the State of New South Wales and is limited to local work operations.

4.3 To be clear, this agreement only applies to local work covered by the Goodman Fielder contract and excludes any long distance operation as defined in the LDO.”

  1. The 2011 NSW EA was approved by Fair Work Australia on 10 November 2011, and it initially had a nominal expiry date of 17 November 2014. On 28 November 2014, the Commission approved a variation to the 2011 NSW EA which, inter alia, altered its nominal expiry date to be 9 November 2015.

  1. In July 2016, the employer issued two separate Notices of Employee Representational Rights (NERR), one in respect to bargaining for a replacement agreement for the 2011 NSW EA, and the other for a replacement agreement for the National agreement that was in operation at that time, the Wettenhalls Group National Enterprise Agreement 2012 (the 2012 National EA). Bargaining for a replacement National agreement was successful, and led to the approval of the 2017 National EA. Bargaining for a replacement for the 2011 NSW EA has not been successful, and on two occasions during 2017 employees voted to reject draft agreement documents proposed by the employer.

  1. As a result of the unsuccessful bargaining for an agreement to replace the 2011 NSW EA, the employer made the application in this matter to terminate that instrument. Subsequently, on 20 March 2018, the TWU succeeded in obtaining a Protected Action Ballot Order in connection with the bargaining for an agreement to replace the 2011 NSW EA.

  1. On 9 May 2018, the Commission issued a Decision ([2018] FWC 2554), (the 418 Decision) which dismissed an application made by the employer under s. 418 of the Act seeking an Order that industrial action in respect to the bargaining for an agreement to replace the 2011 NSW EA be stopped. In the 418 Decision the Commission, inter alia, rejected the proposition that the employees proposing to take industrial action in respect of bargaining for an agreement to replace the 2011 NSW EA were covered by the terms of the 2017 National EA. In these circumstances, the Commission has now been required to consider and determine the employer’s application for termination of the 2011 NSW EA.

The Case for Wettenhalls

  1. The submissions made by First IR on behalf of the employer referred to the requirements of s. 226 of the Act, and were constructed by reference to firstly, the issue of public interest, and secondly, what was described as “the appropriateness test”. The submissions from both Parties referred to various authorities but in particular stressed the approach to consideration of s. 226 that can be extracted from the Full Bench Decision in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd[1] (Aurizon).

  1. The employer submitted that it would not be contrary to the public interest for the Commission to grant the application and terminate the 2011 NSW EA. In this regard, it was submitted that any termination of the 2011 NSW EA was unlikely to impact on the wider community such that public interest considerations were enlivened. Support for this proposition was said to be provided by various factors including; the length of time since the nominal expiry date; the number of employees affected; the limited scope of the 2011 NSW EA; the expiry of the Goodman Fielder NSW contract on 30 June 2019; the existence of relevant safety net terms and conditions of employment being either, the Road Transport and Distribution Award 2010 (the RTD Award), or the 2017 National EA; the protracted and failed negotiations for a replacement agreement; and; the exercise by employees and their bargaining representatives of bargaining rights.

  1. Further, the submissions made on behalf of Wettenhalls dealt with the TWU submissions which involved the assertion that if the 2011 NSW EA was terminated the employees that had been covered by that instrument would lose their bargaining rights and be subject to terms and conditions of employment established by the 2017 National EA, and that such an outcome would be inter alia, inconsistent with the objects of the Act, and thus contrary to the public interest. Wettenhalls rejected that these circumstances satisfied a public interest consideration primarily because the relevant employees had for a significant period, been engaged in bargaining and had exercised all of their rights under the Act albeit without an agreed outcome.

  1. The submissions made on behalf of Wettenhalls also asserted that in the particular circumstances of this case, it would be appropriate to terminate the 2011 NSW EA. It was submitted that it was appropriate to terminate the 2011 NSW EA because there had been protracted, ongoing but unproductive negotiations which had not resulted in the making of any new agreement. Further, it was submitted that it was appropriate to terminate the 2011 NSW EA as such termination would provide for certainty for the employees and lead to a single industrial instrument providing a more efficient means to regulate the terms and conditions of employment for all employees of Wettenhalls.

  1. Wettenhalls submitted that it agreed with the position as advanced by the TWU which contended that in the event that the 2011 NSW EA was terminated, the 2017 National EA would cover and apply to the employees who had previously been covered by the 2011 NSW EA. According to the submissions made on behalf of Wettenhalls, by way of the application of the terms of s. 58 of the Act to the circumstances in this instance, the 2017 National EA already covered and applied to the employees who were putatively covered by the 2011 NSW EA. Further, Wettenhalls submitted that an outcome whereby the 2017 National EA covered and applied to the employees in question was appropriate, and it was not unusual or exceptional because frequently employees would become covered by an enterprise agreement that they did not bargain for.

  1. The submissions made on behalf of Wettenhalls asserted that the requirements of s. 226 of the Act had been established. It was submitted that the termination of the 2011 NSW EA would not be contrary to the public interest. Further, Wettenhalls submitted that the evidence of all of the circumstances including, in particular, the protracted and unsuccessful enterprise bargaining for an agreement to replace the 2011 NSW EA, should lead the Commission to conclude that it was appropriate to terminate the 2011 NSW EA.

The Case for the TWU

  1. The submissions made by the TWU urged the Commission to refuse the application to terminate the 2011 NSW EA. The TWU submitted that consideration of the application should be approached by determining two preliminary issues. The TWU said that it was necessary to firstly determine which of the two enterprise agreements, the 2011 NSW EA or the 2017 National EA, applied to the affected employees. Secondly, it was submitted that it was necessary for the Commission to establish what industrial instrument would cover the affected employees if the 2011 NSW EA was terminated.

  1. The TWU submitted that there was a clear intention of all the Parties when drafting the 2017 National EA, to specifically exclude employees covered by the anticipated agreement to replace the 2011 NSW EA, and this led to the exclusion clause 3.2 of the 2017 National EA incorrectly referring to the Wettenhalls Group Goodman Fielder (NSW) Enterprise Agreement 2017. Consequently, the TWU submitted that the 2017 National EA did not apply to the affected employees and that the 2011 NSW EA currently applied to the affected employees.

  1. In respect of the second preliminary issue that was the subject of the TWU submissions, it was asserted that if the 2011 NSW EA was terminated then the 2017 National EA would apply to the affected employees. The TWU supported this proposition with the submission that: “…as soon as the GF Agreement [2011 NSW EA] is terminated, the specific exclusion of employees “covered” by the Proposed 2017 GF Agreement (and the GF Agreement as contended by the TWU) in clause 3.2 of the National Agreement [2017 National EA] will no longer apply, as those relevant employees will no longer be “covered” by either agreement.”[2] Although somewhat at odds with this proposition, the TWU further submitted: “… the industrial instrument that would cover the affected employees following the possible termination of the GF Agreement [2011 NSW EA] would be the National Agreement [2017 National EA].”[3]

  1. The further submissions made by the TWU then addressed the public interest consideration arising from subsection 226 (a) of the Act. In this regard, it was submitted that termination of the 2011 NSW EA would be contrary to the public interest because; the affected employees would be placed onto an enterprise agreement for which they had no participation in bargaining for or voting on; and; further, these employees would lose all bargaining rights available under the Act until on or around the nominal expiry date of the 2017 National EA, being 31 March 2020. These circumstances were described as an elimination of the currently held collective bargaining rights of the affected employees.

  1. It was submitted by the TWU that an outcome of this nature would go against the very nature and core of the objects of both the Act and Part 2–4 of the Act. In this regard the TWU submitted that the removal of the affected employees collective bargaining rights, and their placement upon an enterprise agreement that they had no participation in bargaining for or voting on, would be in total conflict with the achievements of the relevant objects of the Act, and lead to the diminishment of proper industrial standards. The TWU submitted that such an outcome would be contrary to the public interest.

  1. The TWU made further submissions which dealt with subsections 226 (b) (i) and (ii) of the Act. The TWU submitted that the views of the Parties were quite clear in that the TWU and its members objected to the termination of the 2011 NSW EA because, (a) it would eliminate the collective bargaining abilities of the affected employees, (b) result in less favourable pay and conditions applying to those employees, and, (c) it was inherently unfair and inappropriate in all the circumstances. According to the submissions made by the TWU these were outcomes which significantly outweighed any of the suggested benefits of the termination of the 2011 NSW EA as submitted by Wettenhalls. Consequently the TWU submitted that the Commission should have a higher regard for the likely effect of the termination of the 2011 NSW EA on the affected employees and the TWU, rather than the effects on the applicant.

  1. In conclusion, the TWU submitted that it was neither in the public interest nor was it appropriate to terminate the 2011 NSW EA. The TWU stressed that the termination of the 2011 NSW EA would go against the objects of the Act as it would effectively destroy the bargaining position of the employees of Wettenhalls, and cease the continued negotiations for a new enterprise agreement. Consequently, the TWU urged the Commission to dismiss the application.

Consideration

  1. An application for termination of an enterprise agreement after its nominal expiry date made under s. 225 of the Act is to be determined by the Commission in accordance with s. 226 of the Act. Sections 225 and 226 of the Act are in the following terms:

“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.”

Subsection 226 (a) - Public Interest

  1. Subsection 226 (a) of the Act introduces a public interest consideration in any determination of an application for termination of an enterprise agreement that has passed its nominal expiry date. In this instance, the applicant employer, Wettenhalls, submitted that the termination of the 2011 NSW EA did not raise broader public interest considerations particularly as the matter was confined to the termination of an enterprise agreement that had limited scope, and applied to a limited number of employees. Conversely, the TWU opposed the termination of the 2011 NSW EA primarily upon an assertion that public interest considerations arose because the termination of the 2011 NSW EA would deprive the affected employees of their capacity to exercise bargaining rights, and instead place those employees under the terms of an enterprise agreement that they had no bargaining involvement in, namely, the 2017 National EA.

  1. In this case, there was some conjecture as to what the position would be in terms of industrial regulation for the employees currently covered by the 2011 NSW EA in the event that the application was granted and that agreement was terminated. The Parties appeared to come to an agreed position[4] that in the event that the 2011 NSW EA was terminated, the employees previously covered by it would be covered by the 2017 National EA.

  1. An outcome whereby the 2017 National EA covered, (and presumably applied to), the employees that had previously been covered by the 2011 NSW EA once that agreement had been terminated, was asserted to arise from the relevant text of the 2017 National EA (clause 3), and the operation of s. 58 of the Act. Section 58 of the Act is in the following terms:

“58  Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1)   Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

(2)       If:

(a)an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b)another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

(c)subsection (3) (which deals with a single‑enterprise agreement replacing a multi‑enterprise agreement) does not apply;

then:

(d)      if the earlier agreement has not passed its nominal expiry date:

(i)the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii)the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e)if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

Special rule—single‑enterprise agreement replaces multi‑enterprise agreement

(3)       Despite subsection (2), if:

(a)a multi‑enterprise agreement applies to an employee in relation to particular employment; and

(b)a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation;

the multi‑enterprise agreement ceases to apply to the employee in relation to that employment when the single‑enterprise agreement comes into operation, and can never so apply again.”

  1. It appeared that the Parties considered that subsection 58 (2) of the Act applied to the circumstances in this instance such that; the 2011 NSW EA was considered to be the earlier agreement as contemplated by paragraph (a) of subsection (2); and, the 2017 National EA was considered to be the latter agreement as contemplated by paragraph (b) of subsection (2). Further, as the 2011 NSW EA had passed its nominal expiry date then, subject to the preconditions in paragraphs (a), (b) and (c) having been met, paragraph (e) would operate such that the 2011 NSW EA ceased to apply to the employees and could never apply again.

  1. Although not a proposition that was supported by the TWU, Wettenhalls argued that this position had been reached when the 2017 National EA came into operation because the “carve out” exclusion in clause 3.2 of the 2017 National EA referred to the ““Wettenhalls Goodman Fielder (NSW) Enterprise Agreement 2017”, which was the name of the anticipated replacement for the 2011 NSW EA. However, because there had been no 2017 NSW EA made or approved, Wettenhalls asserted that clause 3.2 of the 2017 National EA did not apply to the employees who continued to be covered by the 2011 NSW EA. It should be noted that this was a proposition that was rejected by the Commission in the 418 Decision. The proposition was rejected on the basis that clause 3.2 erroneously referred to an enterprise agreement that had not been made, and instead it should have referred to the 2011 NSW EA or any enterprise agreement that replaced it.

  1. Further, there is a fundamental, but understandable, misconception with the Parties contemplation of the operation of s. 58 to the particular circumstances in this instance. The proposition that the 2017 National EA would cover and apply to employees who had previously been covered and had the 2011 NSW EA apply to them, is an outcome that requires, inter alia, satisfaction of paragraph (b) of subsection 58 (2) of the Act. That is, it must be established that the latter agreement, in this case the 2017 National EA, covers the employees that had the earlier agreement, the 2011 NSW EA, apply to them.

  1. Upon careful analysis, the 2017 National EA does not cover the employees who have been covered by and had the 2011 NSW EA apply to them, nor does the 2017 National EA cover those employees in circumstances when the 2011 NSW EA is terminated. This conclusion has been established for the following reasons.

  1. Clause 3 of the 2017 National EA contains terms which described its scope and application. Clause 3 reads as follows:

“3. SCOPE AND APPLICATION

3.1      This agreement covers and applies to:

3.1.1      Wettenhalls;

3.1.2      the employees of Wettenhalls employed to perform work in the road transport and distribution industry in the classifications specified in this agreement; and

3.1.3      the TWU, on application, in accordance with the Act.

3.2      This agreement does not apply to employees who are covered by the “Wettenhalls Goodman Fielder (NSW) Enterprise Agreement 2017.

3.3      This agreement provides additional benefits to the terms of the awards, and as such no additional penalty, allowance or payment howsoever described under the awards is applicable to employees operating under this agreement unless explicitly provided for in this agreement.

3.4      This agreement does not purport to exclude the operation of the NES. Where a term of this agreement is contrary to the NES, the term of the NES prevails.

3.5      For local work operations, this agreement shall be read in conjunction with the RTD Award excluding any clause providing for penalties, allowances or payments howsoever described under the RTD Award and the following clauses:

3.5.1 Clause 11 Dispute Resolution Training Leave
3.5.2 Clause 12.4 Part-time employment
3.5.3 Clause 12.6 Conversion of casual employees
3.5.4 Clause 22 Ordinary Hours of Work
3.5.5 Clause 24 Shiftwork – any and all references to shiftwork are contained within this agreement.

3.6      For long distance operations, this agreement shall be read in conjunction with the LDO Award excluding any clause providing for penalties, allowances or payments howsoever described under the LDO Award.

3.7      Where any discrepancy or conflict occurs between a term of the RTD Award or the LDO Award (as the case may be) and this agreement, then the term of this agreement shall prevail.”

  1. Clause 3.1.2 of the 2017 National EA, when read in conjunction with the definition of “road transport and distribution industry” contained in clause 5.1.24, would, on its face, appear to comprehend the road transport and distribution industry throughout Australia as mentioned in clause 4.1 of the RTD Award. Consequently, the Parties have understandably considered that the 2017 National EA was indeed “National” in its operation. From this position, clause 3.2 of the 2017 National EA has been seen to specifically “carve out” the Goodman Fielder operation in New South Wales, so that it was excluded from what would have otherwise been the operation of the 2017 National EA.

  1. As a result, the Parties have understandably contemplated that the consequence of the termination of the 2011 NSW EA would remove the mistakenly described exclusion from operation of the 2017 National EA contained in clause 3.2. As previously mentioned, Wettenhalls’ position went further, and it contended that the exclusion from operation of the 2017 National EA of an agreement which has never existed, meant that from the commencement of the operation of the 2017 National EA it had covered and applied to employees who were putatively covered by the (expired) 2011 NSW EA.

  1. However, under either permutation of the position as was advanced by the Parties, it was assumed that the 2017 National EA was indeed “National” in its operation. That is, at the very least, if the exclusion provided by clause 3.2 of the 2017 National EA was effectively negated because the 2011 NSW EA was terminated, it was assumed that in the absence of the exclusion, the 2017 National EA would cover and apply to the employees who had previously been covered by the 2011 NSW EA. This would appear to be a logical interpretation of the terms of clauses 3.1.2 and 3.2 of the 2017 National EA in circumstances where the 2011 NSW EA was terminated.

  1. However, the proper determination of the scope and application of an enterprise agreement may be obtained by reference to documentation other than the terms contained in the scope and application clauses of the particular enterprise agreement. For instance, it will often be necessary to refer to the supporting documentation upon which the approval of the enterprise agreement was provided by the Commission.

  1. In this instance it was very unfortunate that the statement of Mr Rodger from the TWU attached the wrong Form F17 - Employer’s Declaration in Support of Application for Approval of an Enterprise Agreement.[5] This error was identified in the submissions in reply from the applicant[6]. However, if the Form F-17 for the 2017 National EA had been correctly attached as “GR-11” it would have revealed information that is crucial to the correct determination of the scope and application of the 2017 National EA.

  1. The Form F-17 for the 2017 National EA was a Statutory Declaration of Fiona Rippon dated 21 June 2017 (the Rippon Declaration). At paragraph 2.2 of the Rippon Declaration it is clear that the scope of the 2017 National EA did not include coverage of all of the employees of the employer. More significantly, at paragraph 4.2 of the Rippon Declaration, the States and Territories in which the 2017 National EA was to operate specifically did not include New South Wales. In fact, the Rippon Declaration states that the 2017 National EA operates only in; Australian Capital Territory, Queensland and Victoria.

  1. It is also relevant to note that the NERR that was issued in respect to the bargaining for the 2017 National EA indicated that it was proposed to cover employees who were covered by the 2012 National EA. Clause 4.2 of the 2012 National EA specifically excluded employees who are covered by the 2011 NSW EA, or employees covered by the “"Amezdroz & Son Pty Ltd t/as Wettenhalls Group - Transport Workers' Union Enterprise Agreement 2010"(AG2010/14655)”. This documentation reflects the historical position for separate industrial instrument regulation in the State of New South Wales as referred to in the statement of Michael Lean.[7]

  1. Consequently, when all of the documentary material is properly considered, and, despite the potential interpretation that can be extracted from the terms of clauses 3.1 and 3.2 of the 2017 National EA, it is an industrial instrument that does not operate, inter alia, in the State of New South Wales. Therefore, the termination of the 2011 NSW EA will not result in the 2017 National EA covering or applying to the employees that were previously covered by the 2011 NSW EA. As a result, there is no prospect for realisation of the circumstances upon which the public interest concerns of the TWU were advanced.

  1. Accordingly, the Commission is satisfied that it is not contrary to the public interest to terminate the 2011 NSW EA.

Subsection 226 (b) - Inappropriateness

  1. In this case, the Commission has been provided with the views of the employer, and the employee organisation covered by the agreement (the TWU). The opposition of the TWU to the termination of the 2011 NSW EA in respect to purported inappropriateness was in large part based upon the anticipated coverage of the 2017 National EA which it was said would have eliminated the collective bargaining abilities of the affected employees. This circumstance has now been dispelled, and consequently any inappropriateness of such an outcome has been removed.

  1. Although there was no evidence provided from any of the employees potentially affected by the termination of the 2011 NSW EA, there was uncontested evidence that the termination of the 2011 NSW EA would result in a reduction in certain hourly rates of pay. The identified hourly reductions in pay rates were calculated on the basis of the commitment given by Wettenhalls that in the event that the 2011 NSW EA was terminated it would apply the terms and conditions of the 2017 National EA, and not the RTD Award to the affected employees. Indeed, one of the factors that was advanced as support for the termination of the 2011 NSW EA involved the reduction in operational costs associated with administering one consistent set of industrial terms and conditions.

  1. The Commission has considered all of the particular circumstances of this case including the likely effect that termination of the 2011 NSW EA will have on the employees and the employer. In particular, it is relevant to note that the bargaining for an agreement to replace the 2011 NSW EA has been protracted, and it has involved the employees and the TWU accessing bargaining rights provided for under the Act. Regrettably, the bargaining has been unsuccessful to date, and particularly as it is well established that the Act does not provide for any predisposition against the termination of an enterprise agreement that has past its nominal expiry date, there is, in the circumstances of this case, no proper basis for the Commission to refuse the application and terminate the 2011 NSW EA.

  1. The applicant did not make any particular submission about the desired date for the termination of the 2011 NSW EA. Presumably, Wettenhalls seek to have the termination of the 2011 NSW EA made immediately upon any determination of the application before the Commission. Conversely, the TWU submitted that if the Commission was disposed to grant the application any termination should coincide with the expiry of the Goodman Fielder NSW contract, 30 June 2019.

  1. Upon careful reflection, and having regard for the protracted period of enterprise bargaining that has been proceeding unsuccessfully, the Commission has determined that it would be appropriate for the termination of the 2011 NSW EA to operate on and from Monday, 8 October 2018. This prospective date of termination will provide the Parties with some further opportunity to endeavour to reach agreement on a replacement for the 2011 NSW EA. However, the termination of the 2011 NSW EA will not impact upon the bargaining rights for the affected employees who may continue to pursue a replacement agreement beyond the date of the termination of the 2011 NSW EA.

  1. An Order providing for the termination of the 2011 NSW EA on and from 8 October 2018 shall be issued accordingly.

COMMISSIONER


[1]     Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540.

[2]     TWU submissions (26 April 2018) paragraph 33.

[3]     TWU submissions (26 April 2018) paragraph 38.

[4]     Submissions in reply for the applicant, 3 May 2018.

[5]     Paragraph 31 -  Attachment “GR-11”.

[6]     Paragraph 30 of applicant submissions in reply, 3 May 2018.

[7]     Paragraphs 2,3 and 4 of the undated and unsigned statement of Michael Lean.

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DRW Pty Ltd T/A Wettenhalls v Transport Workers' Union of Australia [2018] FWC 2554