Evan Butterworth

[2017] FWCA 1028

[2017] FWCA 1028

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
(AG2016/6561)

BRUMBYS BAY CITY GREENFIELDS AGREEMENT 2008

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 21 FEBRUARY 2017

Application for termination of the Brumbys Bay City Greenfields Agreement 2008.

[1] On 21 October 2016, an application was filed on behalf of The Trustee for Bambac Business Trust T/A Brumbys Bay City pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Brumbys Bay City Greenfields Agreement 2008 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] 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.

[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.

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.”

[5] Following a request from my chambers, on 11 December 2016, a statutory declaration was filed by Mr Brett Morrissy, Business Owner, who said the business had closed down and there are no employees covered by the Agreement.

[6] I am satisfied The Trustee for Bambac Business Trust T/A Brumbys Bay City, is eligible to apply to the Fair Work Commission for the termination of the Agreement under s.225(a) of the Act.

[7] In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate taking into account all the circumstances.

[8] In accordance with s.227 of the Act, the termination will take effect from 21 February 2017.

DEPUTY PRESIDENT

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