Flexi Personnel Pty Ltd

[2013] FWCA 5014

[2013] FWCA 5014

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Flexi Personnel Pty Ltd
(AG2013/6984)

FLEXI PERSONNEL PTY LTD METAL AND ASSOCIATED INDUSTRIES LABOUR HIRE CERTIFIED AGREEMENT 2003-2006

Manufacturing and associated industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 23 JULY 2013

Application for termination of the Flexi Personnel Pty Ltd Metal and Associated Industries Labour Hire Certified Agreement 2003-2006.

[1] Flexi Personnel Pty Ltd applied to terminate the Flexi Personnel Pty Ltd Metal and Associated Industries Labour Hire Certified Agreement 2003 -2006 (the Agreement).

[2] The nominal expiry date of the Agreement was 31 March 2006.

[3] The Agreement was binding on the Automotive, Food, Engineering, Printing & Kindred Industries Union, (known as the Australian Manufacturing Workers Union) (the AMWU), the Australian Workers Union (the AWU) and the Construction, Forestry Mining and Energy Union (the CFMEU).

[4] I issued directions that a copy of the application and notice of listing be provided to the employees.

[5] The application was listed for hearing on 8 July 2013. At that hearing the AMWU and the CFMEU advised that they opposed the application and sought an adjournment of the proceedings. An adjournment was granted and the application was listed for 17 July 2013. On that day, prior to the hearing, the AMWU on the CFMEU advised that they no longer wish to be heard in relation to the application.

The Legislative Framework

[6] By virtue of item 2(5)(c)(v) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 the Agreement is a “collective agreement-based transitional instrument” for the purposes of that Act. Pursuant to item 16 of Schedule 3 of that Act, the application is properly brought under s.225 of the Fair Work Act 2009 (the FW Act).

[7] Sections 225, 226 and 227 of the FW Act provide 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 FWA 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 FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.”

Submissions of the Applicant

[8] The Applicant has five employees, only one of whom was employed between 20 May 2013 to 30 June 2013. The weekly rate of pay in the Agreement of $921.34 has not been varied since 1 January 2006. The employees are currently paid above the Agreement rate and the Applicant advised that if the Agreement was terminated, that there would be no diminution of employees terms and conditions.

[9] If the Agreement is terminated the employees’ employment would be regulated by the Manufacturing and Associated Industries and Occupations Award 2010 (the Award). The employees earn in excess of the Award rates of pay.

[10] On 12 June 2013, the Applicant wrote to the employees and advised them of its intention to apply for the Agreement to be terminated and provided written undertakings to them that their present terms and conditions would be maintained.

[11] The Applicant submitted that it would not be contrary to the public interest to terminate the Agreement as the nominal expiry date of the Agreement was some seven years ago; the Agreement only applies to 2.2% of its total casual workforce; the employees would be covered by the Award; and existing employees would have their terms and conditions of employment maintained.

[12] It was submitted that there have been no negotiations with any of the respondent unions for a new collective agreement.

[13] Further it was submitted that the Agreement no longer met the business needs of the Applicant.

Conclusion

[14] Neither the employees nor the unions have made any submissions in opposition to the termination of the Agreement.

[15] I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[16] The Applicant has given undertakings to preserve the terms and conditions of existing employees.

[17] In all the circumstances, I have decided to terminate the Agreement.

[18] Therefore, pursuant to Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the Fair Work Commission approves the termination of the Flexi Personnel Pty Ltd Metal and Associated Industries Labour Hire Certified Agreement 2003-2006.

[19] The termination operates from 23 July 2013.

DEPUTY PRESIDENT

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<Price code A, AG829173  PR539335>