Employee X

[2021] FWCA 2938

[2021] FWCA 2938 [Note: a correction has been issued to this document]

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

Employee X
(AG2020/3430)

VANTAR PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 21 MAY 2021

Application for termination of the Vantar Pty Ltd Employee Collective Agreement 2007.

[1] On 12 November 2020, Employee X applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act), to terminate the Vantar Pty Ltd Employee Collective Agreement 2007 (the Agreement). The Agreement nominally expired in 2012 and the Applicant is an employee covered by the Agreement.

[2] For the reasons that follow I have decided that it is appropriate to terminate the Agreement.

Context

[3] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of the Transitional Act apply. The effect of Item 16 of Schedule 3 of the transitional Act is that the termination of agreement provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) apply to the Agreement as through a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[4] Part 2-4, Division 7, Subdivision D of the FW Act contains the following provisions:

“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

[5] The application was supplemented with a statutory declaration from the Applicant’s agent who declared that the Applicant was a current employee working for Vantar Pty Ltd (the Employer) subject to the Agreement. The employer confidentially provided a list of employees as at the date of the application, and I have confirmed that the Applicant was an employee employed by the Employer at the time of the Application.

[6] As the Agreement has passed its nominal expiry date and the Applicant was an employee covered by the Agreement at the time of their application, I find that the Applicant had standing to make the application pursuant to s.225(b) of the Act.

[7] The views of the Employer were sought, and obtained, with the Employer providing their consent for the termination of the Agreement, subject to the approval taking effect three months after the date of the approval of the termination application. The Applicant’s views were sought, and obtained, and the Applicant supported this course.

[8] The effect of terminating the Agreement will be that the modern award will cover and apply to the relevant employees employed by the Employer. In consideration of the information supplied in and supplementary to the application, I am satisfied that the termination of this Agreement is not contrary to the public interest.

[9] Taking into account all of the circumstances, including the considerations contained within s.226 and s.227 of the Act, I consider that it is appropriate to terminate the Agreement.

[10] The Agreement is terminated. The Termination will operate from 25 July 2021.

DEPUTY PRESIDENT

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<AC320657  PR730067>