Fletcher Insulation Pty Ltd T/A Fletcher Insulation

[2020] FWCA 2602

[2020] FWCA 2602

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

Fletcher Insulation Pty Ltd T/A Fletcher Insulation
(AG2020/1254)

FLETCHER INSULATION PTY LTD (BOHLE WAREHOUSE) EMPLOYEES COLLECTIVE AGREEMENT

Gardening services
DEPUTY PRESIDENT DEAN	SYDNEY, 19 MAY 2020

Application for termination of the Fletcher Insulation Pty Ltd (Bohle Warehouse) Employees Collective Agreement.

[1] On 6 May 2020, Fletcher Insulation Pty Ltd T/A Fletcher Insulation made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Fletcher Insulation Pty Ltd (Bohle Warehouse) Employees Collective Agreement (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date of 1 July 2013.

[3] Schedule 3, Item 16(1) of the TPCA Act provides:

Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement

[4] Relevantly sections 225 and 226 of the FW Act provides:

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 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

[5] The application is accompanied by a statutory declaration of Ms Sibel Dere, Human Resources Advisor of the employer. Ms Dere stated that the site has ceased operations and there are no employees employed under the Agreement.

[6] I have considered, and am satisfied the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met. Accordingly, the Agreement is terminated.

[7] The termination will come into effect from 19 May 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AC316825  PR719456>