Employment Innovations Pty Ltd T/A Employment Innovations

[2021] FWCA 2483

[2021] FWCA 2483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Employment Innovations Pty Ltd T/A Employment Innovations
(AG2019/4032)

EMPLOYMENT INNOVATIONS PTY LTD ENTERPRISE AGREEMENT 2010

Retail industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 4 MAY 2021

Application for termination of the Employment Innovations Pty Ltd Enterprise Agreement 2010.

Background

[1] Employment Innovations Pty Ltd T/A Employment Innovations (the Applicant) applies under s.225 of the Fair Work Act 2009 (the Act) for the termination of the Employment Innovations Pty Ltd Enterprise Agreement 2010 (the Agreement). The Applicant seeks to terminate the Agreement and revert to the modern Awards that would otherwise apply to employees covered by the Agreement. The Agreement nominally expired on 29 July 2014.

[2] The Applicant is a labour hire employer who provided labour hire services to businesses, some of which subsequently chose to insource the work previously performed by employees of the Applicant who were provided to those businesses. The Applicant no longer has any employees who are covered by the Agreement. However, when employees of the Applicant transferred to those businesses, it is likely that the Agreement operated as a transferring instrument and it is therefore possible that there are businesses who have employees covered by the Agreement.

[3] The termination application was made following an appeal by Samgist Pty Ltd, Silkdaze Pty Ltd, Kulin Holdings Pty Ltd, Dollone Pty Ltd and Laoplea Pty Ltd T/A 3 Wise Monkeys Pub against an earlier decision terminating the Agreement (the first termination decision). 1 A Full Bench of the Commission upheld the appeal and quashed the first termination decision by consent on the basis that each of those companies had been denied procedural fairness in relation to the first termination decision.2 The disposition of the appeal also included that the Applicant would make a fresh application for termination of the Agreement. This Decision concerns that application.

[4] The Applicant made a statutory declaration confirming that the Form 24B application for termination of an enterprise agreement after the nominal expiry date and Form F24C Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date, had been served on any business that the Applicant provided labour to, from the point the Agreement came into operation. The Applicant provided the Commission with a list of these businesses. All documentation relevant to the application for termination of the Agreement was served on those businesses.

Notification to employers and employees covered by the Agreement

[5] On 10 March 2021, I issued a Statement setting out the background to the application and the effect of the application being granted. The Statement set out that the effect of the application being granted would be that the Agreement would be terminated and the terms of the following awardswould apply to employees whose employment was previously covered by the Agreement:

•  Clerks—Private Sector Award 2020 [MA000002];

•  Fast Food Industry Award 2010 [MA000003];

•  General Retail Industry Award 2020 [MA000004];

•  Hospitality Industry (General) Award 2020 [MA000009]; and

•  Restaurant Industry Award 2020 [MA000119]

[6] The Statement also set out the relevant legislative provisions and that my provisional view was that it would not be contrary to the public interest to terminate the Agreement. To enable consideration of the views of the employees covered by the Agreement, and the views of the employers of those employees, a copy of this Statement was sent by the Commission to all businesses that the Applicant has supplied labour to. Copies of the following documents were also sent with the Statement:

A copy of the Form F24B application; and

A copy of the Form F2C Statutory Declaration filed with the application.

[7] The businesses to whom the documents are provided were requested to disseminate them to employees including by posting on notice boards or providing copies in the workplace. Employees and employers were also advised that if they wished to provide their views to the Commission in relation to the termination of the Agreement they should email my Chambers by no later than 4.00pm on Thursday 18 March 2021.

[8] No correspondence was received from any employer or employee in relation to the termination of the Agreement.

Consideration

[9] In determining whether the Agreement should be terminated, the Commission must consider the matters contained in s.226 of the Act, which states:

“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.”

[10] Having considered the matters in s. 226 of the Act, the application has been made under s. 225 of the Act by one or more of the employers covered by the Agreement. I am satisfied that it is not contrary to the public interest to terminate the Agreement. The employers who made the Application want the Agreement terminated. The views of other employers and employees who may be covered by the Agreement have been sought and no view opposing the termination of the Agreement has been expressed. The United Workers Union which originally applied to have the Agreement terminated, does not oppose the termination.

[11] The circumstances of the employees and the employers are that modern awards with more favourable terms and conditions of employment than those in the Agreement will apply. If employers and employees have made enterprise agreements after the Agreement operated, those enterprise agreements operate and the termination will have no effect on those employers and employees.

Conclusion

[12] In all of the circumstances I consider it appropriate to terminate the Agreement and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   C2019/4280.

 2   PR713114

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