Evan Butterworth

[2017] FWC 1024

[2017] FWC 1024

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

Evan Butterworth
(AG2016/6560)

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 21 FEBRUARY 2017

Application for termination of the Brumbys East Geelong Collective Agreement 2007.

[1] On 21 October 2016, an application was filed on behalf of The Trustee for Garden Street Business Trust T/A Brumbys Garden Street pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Brumbys East Geelong Collective Agreement 2007 (the Agreement). A statutory declaration was made by Mr Brett Morrissy, the former owner of the business.

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[3] In the course of managing the file, it became apparent that the business was sold to Hope Crocker Pty Ltd and approximately 10 employees transferred to the new employer. Pursuant to s.313 of the Act, the Agreement is a transferable instrument which covers the new employer and the transferring employees. The Fair Work Commission was advised of the new business owners’ details and Directions were issued. There has been no contact made by Hope Crocker Pty Ltd with the Commission.

[4] The Act relevantly provides as follows:

“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.”

[5] Based on the correspondence received by the Commission, I find that the Applicant in this matter is not an employer covered by the Agreement and therefore is not able to apply to the Commission for the termination of the Agreement. The application was therefore not validly made and must be dismissed. An Order to this effect will be issued with this Decision.

[6] I note, should the current employer or an employee covered by the Agreement wish to make application to terminate the Agreement, such application should be made by the filing of a Form F28 and Form F24C in the Commission.

DEPUTY PRESIDENT

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