Fencetech Australia Pty Ltd T/A Otter Fencing

[2018] FWCA 4370

[2018] FWCA 4370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Fencetech Australia Pty Ltd T/A Otter Fencing
(AG2018/3225)

OTTER FENCING PTY LTD ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 27 JULY 2018

Application for termination of the Otter Fencing Pty Ltd Enterprise Agreement 2013.

[1] On 13 July 2018 Fencetech Australia Pty Ltd T/A Otter Fencing (the Applicant) lodged an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Otter Fencing Pty Ltd Enterprise Agreement 2013 (the Agreement).

[2] The Agreement has a nominal expiry date of 31 July 2016.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

[4] The employer who is covered by the Agreement seeks its termination following a transfer of business which has resulted in two sets of terms and conditions applying to its workforce. According to the employer, the Agreement is not relevant to its business.

[5] If the Agreement is terminated employees will become covered by the Manufacturing and Associated Industries and Occupations Award 2010 1(the Award). The Agreement provides certain benefits to employees, including contingent benefits, that will no longer apply if the Agreement is terminated. These include a performance incentive payment, more beneficial redundancy pay and pay-out of unused personal leave in certain circumstances. The employer has paid employees an amount of monetary compensation in recognition of the reduction in entitlements.

[6] The employees covered by the Agreement have indicated by way of a petition that they support the termination of the Agreement. 2

[7] On the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that termination of the Agreement is appropriate having regard to all the circumstances, including as set out in the Form F24C statutory declaration filed with the application. Accordingly, the Agreement is terminated.

[8] In accordance with section 227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

 1   MA000010

 2   Employee petition filed on 13 July 2018

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