Gant & Sons Pty Ltd

[2021] FWCA 3148

[2021] FWCA 3148

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Gant & Sons Pty Ltd
(AG2021/5138)

GANT & SON PTY LTD ENTERPRISE AGREEMENT 2004

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 1 JUNE 2021

Application for termination of the Gant & Son Pty Ltd Enterprise Agreement 2004

[1] On 14 May 2021 Gant & Sons Pty Ltd (the Applicant), made an application to terminate the Gant & Son Pty Ltd Enterprise Agreement 2004 (the Agreement) under Sch. 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Provisions).

[2] The effect of the Transitional Provisions is to treat collective agreement-based instruments made under the predecessors of the Fair Work Act 2009 (FW Act), as agreements as made under the FW Act.

[3] I issued directions on 19 May 2021.

[4] I heard the matter by telephone on 1 June 2021 at which time I heard from Mr Condon of the Master Builders Association of South Australia Incorporated and Mr Drew Koch, the Operations Manager of the Applicant.

[5] The Applicant, as the employer covered by the Agreement, is entitled to apply for the termination of the Agreement pursuant to section 222 of the FW Act, as enlivened by the Transitional Provisions.

[6] The Agreement is a single enterprise employee collective agreement. It was approved by the Australian Industrial Relations Commission on 1 November 2004 1. The Agreement was approved to operate starting on 29 October 2004, with a nominal expiry date of 29 October 2007. It has now passed its nominal expiry date.

[7] I have considered the information provided in the application and by Mr Koch pursuant to section 222 of the FW Act. This includes the Statutory Declarations by Mr Koch dated 13 May 2021 and 24 May 2021. I note that there are now eleven (11) employees covered by the Agreement. I also take into consideration that all eleven (11) employees voted to approve the termination of the Agreement, and the ballot result forms part of the application. Employees were given notice of these proceedings. No employee appeared in relation to the application. I further note that no union is covered by the Agreement.

[8] I also note that at the time the Agreement was made Gant & Sons Pty Ltd operated under a different name ‘Gant & Son Pty Ltd’ but retains the same Australian Company Number.

[9] I am satisfied as to each of the matters contained in section 223 of the FW Act. There are no reasonable grounds for believing that the employees have not agreed to the termination. It is appropriate to approve the termination of the Agreement. Accordingly, the Agreement is terminated.

[10] The termination will come into effect from 11.59pm on 1 June 2021. An Order 2 to this effect will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

 1   AG837277 / PR952865

 2   PR730359

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<AG837277 PR730358>