Freedom Fuels Australia Pty Ltd T/A Freedom Fuels

[2017] FWCA 1434

[2017] FWCA 1434

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

Freedom Fuels Australia Pty Ltd T/A Freedom Fuels
(AG2017/422)

FREEDOM FUELS AUSTRALIA PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Vehicle industry
COMMISSIONER SIMPSON	BRISBANE, 22 MARCH 2017

Application for termination of the Freedom Fuels Australia Pty Ltd Employee Collective Agreement 2009 (Agreement Number 096254105 / AC326177)

[1] This is an application made by Freedom Fuels Australia Pty Ltd (the applicant) for the termination of a collective agreement based transitional instrument after the nominal expiry date pursuant to item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[2] The transitional instrument is titled the Freedom Fuels Australia Pty Ltd Employee Collective Agreement 2009 (the Agreement). By way of background I have summarised information set out in the Statutory Declaration of Elizabeth Inder accompanying the application.

[3] A vote was conducted between 17 and 19 June 2009 in relation to the Agreement that was successful, and as a result on 23 June 2009, Mr John Weir then HR Manager of Freedom Fuels lodged an online application with the Workplace Authority (WA) for the approval of the Agreement. This lodgement was allocated agreement number 096169345 / AC324749 (the first lodgement).

[4] After the first lodgement Mr Weir realised that he made an error in completing the Employer Declaration Form when submitting the Agreement to the WA for approval.

[5] The applicant’s records indicate Mr Weir contacted the WA to seek advice in relation to that matter and was advised to re-lodge the Agreement. Mr Weir was given the call reference number in relation to his interaction with the WA on this issue – 2650650.

[6] On or around 30 June 2009, Mr Weir re-lodged the Agreement again using the WA’s online lodgement mechanism. This lodgement was allocated agreement number 096254105 / AC326177 (the second lodgement).

[7] On 20 July 2009 a s.346M notice was issued by the WA stating that the Agreement arising from the first lodgement had passed the no disadvantage test (NDT) and as such would come into operation on the seventh day after the date of issue of the notice.

[8] The applicant’s records further indicate that also on 20 July 2009, Mr Weir contacted Fair Work Australia (FWA) (as it had taken over agreement approval functions from the WA) via email, citing call reference number 2650650, alerting them to the fact that the Agreement had now been allocated two different numbers and seeking clarification as to which lodgement number would be the applicable one.

[9] A representative from the FWA helpline responded to Mr Weir later that day indicating that it would forward his enquiry to the Fair Work Ombudsman (FWO).

[10] Ms Inder said that she was involved in the negotiation and lodgement of the Agreement and has no recollection of the applicant ever being subsequently contacted by the FWO, FWA or WA in relation to the existence of the two lodgement/agreement numbers. Ms Inder said searches of internal records have also not unearthed any such communication nor have enquiries with the applicant’s solicitor who assisted in the Agreement making process.

[11] Ms Inder said as far as she is aware the applicant never received an approval notice from the WA or the FWA in relation to the second lodgement. Furthermore, until mid to late 2016, searches of the relevant FWO/FWA/FWC website only ever indicated that one agreement was in operation in relation to Freedom Fuels. As such the applicant has worked on the basis that there was one collective agreement in operation and that was the Agreement Arising from the first lodgement.

[12] In early 2012 the applicant made an application to terminate the Agreement arising from the first lodgement by agreement with employees. Following a hearing I issued a decision terminating the Agreement with effect from Friday 3 February 2012.

[13] Ms Inder said that from mid to late 2016 it came to her attention that employees were being informed by the FWO that they were covered by a workplace agreement. A search of the FWC’s website indicated that a collective agreement bearing number 096254105 / AC326177 is in operation in respect of the applicant and its employees. Ms Inder said this agreement is obviously the Agreement arising from the second lodgement.

[14] It is said for the applicant that there is only one collective agreement that was made in 2009 between the applicant and its employees, and only one vote was conducted. It is said that the agreement lodged under the second lodgement is the same agreement that was lodged under the first lodgement, and to the extent that two agreements are in operation in respect of the applicant, this is as a result of an administrative error.

[15] It was said for the applicant that had it been aware of the existence of the second agreement (i.e. the agreement arising from the second lodgement) it would have taken steps to terminate it at the same time as the agreement arising from the first lodgement was terminated.

[16] Following a directions hearing on 28 February 2017 I issued directions that by no later than 5pm 2 March 2017 the applicant shall, firstly place a copy of the Form F28 and Form F24C in this matter, together with my directions on the notice board of each worksite, and secondly, that the applicant direct its employees attention to the Forms and Directions by way of notation in the work diary at each site.

[17] I included in my directions that any interested employee who wished to comment or be heard on the proposed termination of the Agreement shall file written submissions in the Commission by no later than 5pm on Thursday 9 March 2017. The directions order included the email address of my chambers at which submissions could be emailed. The matter was listed for hearing on 13 March 2017. I indicated at the directions hearing that if no submissions were received I would give consideration to dealing with the application on the papers.

[18] The applicant’s solicitor sent correspondence to my chambers on 9 March at 4.24pm advising that the applicant had complied with the directions of the Commission, and was unaware of any employee having expressed a view in regard to the application, and requesting advice as to whether the Commission had received any submissions in relation to the application. On 10 March my associate sent correspondence to the applicant advising no submissions had been received in relation to the application and on that basis the hearing on 13 March would be vacated, and the application dealt with on the papers.

[19] In accordance with Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Subdivision D of Part 2-4 of the FW Act 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.

[20] The instrument the subject of this application has passed its nominal expiry date and the applicant, as the employer covered by the agreement is entitled to apply for its termination.

[21] The FWC must terminate the agreement if a number of criteria are satisfied. The first of those is whether the FWC is satisfied it is not contrary to the public interest to do so. Given the particular circumstances of this case I can identify no reason why it would be contrary to the public interest for the agreement not to be terminated given it would appear the only reason it remains on foot is administrative error. It is my view in all likelihood the agreement purported to exist by force of the second lodgement given agreement number 096254105 / AC326177 is a nullity as I accept the applicant’s submission that there was only ever one agreement made. If there was only one agreement made then that agreement was terminated by the decision issued on 6 February 2012.

[22] However, should there be any doubt about the correctness of that view, I am satisfied it is appropriate in the peculiar circumstances of this case to exercise power to the extent that I have it to grant this application and make the further decision to terminate the Freedom Fuels Australia Pty Ltd Employee Collective Agreement 2009 (Agreement Number 096254105 / AC 326177)

[23] I have taken into account the views of the employer as the applicant, and have provided by the directions issued a reasonable opportunity for employees to express views about this application. None were provided. No employee organisation is covered by the agreement. The termination of this agreement will have no effect on the employer and employees as in my view given the facts of this matter it is most improbable the purported terms could ever be enforced, and further to that it appears the parties have proceeded to conduct themselves since February 2012 on the basis that it was accepted that the agreement they understood that they had made in 2009 had been terminated in 2012.

[24] I have decided to terminate the Freedom Fuels Australia Pty Ltd Employee Collective Agreement 2009 (Agreement Number 096254105 / AC 326177) with the date of termination to operate retrospectively from Friday 3 February 2012 which aligns with the date of termination in the decision of 6 February 2012.

COMMISSIONER

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<Price code A, AC326177 PR590937>