Genpower/ASCA (now Genpower Australia Pty Ltd) T/A Genpower Australia aft Genpower Trust
[2022] FWC 606
| [2022] FWC 606 |
| 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
Genpower/ASCA (now Genpower Australia Pty Ltd) T/A Genpower Australia aft Genpower Trust
(AG2022/386) (AG 2022/383)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 24 MARCH 2022 |
Application for termination of the Genpower/ACSA (Aust) Pty Ltd Adelaide Enterprise Agreement 2004 - 2006
These are the reasons for decision delivered ex tempore on 18 March 2022.
On 15 February 2022 Genpower/ASCA (now Genpower Australia Pty Ltd) T/A Genpower Australia Aft Genpower Trust (Genpower or the applicant employer) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the FW TPCA Act) to terminate the Genpower/ACSA (Aust) Pty Ltd Adelaide Enterprise Agreement 2004 - 2006 (the Agreement).
At an earlier time on 15 February 2022 the Applicant also filed an application under s 225 of the Fair Work Act 2009 (the FW Act) for an order terminating the same Agreement. During the hearing of this matter it became apparent that the Item 16 Schedule 3 application (AG2022/386) is the appropriate application to deal with the matter. The first filed application (AG2022/383) was not pressed.
The application lodged by Genpower under Item 16, Schedule 3 cited “Genpower/ACSA (Aust) Pty Ltd Adelaide Enterprise Agreement 2001-2004-2006” as the agreement or agreements to be terminated. Three agreements applied to the Applicant over the period 2000 to 2006:
Genpower/ASCA (Aust) Pty Ltd Adelaide Enterprise Agreement 2000-2001;
Genpower/ASCA (Aust) Pty Ltd Adelaide Enterprise Agreement 2002-2003; and
Genpower/ASCA (Aust) Pty Ltd Adelaide Enterprise Agreement 2004-2006.
By force of law, the more recent of these agreements superseded its predecessor. For the purposes of this matter it is only necessary to determine whether the Genpower/ACSA (Aust) Pty Ltd Adelaide Enterprise Agreement 2004 - 2006 should be terminated. I proceed on this basis.
In support of the application, Lynn Morcom, General Manager, lodged a statutory declaration with the Commission dated 15 February 2022 stating that the Agreement expired fifteen years ago and that employees are now being employed by reference to the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award).
Item 16, Schedule 3 of the FW TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act) applies to applications to terminate collective agreement-based transitional instruments which have passed their nominal expiry date.
I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed. In fact, its nominal expiry date was 30 June 2006, close to sixteen years ago. No employee organisation is covered by the Agreement.
As noted, the statutory declaration states that Genpower’s employees (two persons) are now being employed under the Manufacturing Award.
I issued Directions concerning the application on 7 March 2022 which provided an opportunity for any employee under the Agreement to oppose or otherwise express a view on the application. I also directed that the Directions (including listing details) be advised to employees.
On 8 March 2022 the applicant employer filed a document stating the two remaining employees had been provided a copy of the application documents and that neither wished to attend the hearing. This document was signed by the two persons and each signature was dated 8 March 2022.
As foreshadowed, neither of the employees attended the hearing.
I heard the matter by telephone on 18 March 2022 at which time I received submissions from Ms Morcom. Ms Morcom confirmed that no employees are currently being employed by reference to the terms of the Agreement and that this application is a ‘tidying up’ exercise.
Section 226 of the FW Act provides:
“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.”
Though there appears to be no disadvantage to any employee should the Agreement be terminated given its outdated terms, at the hearing Genpower provided an undertaking that in the event there is a differential provision under the Agreement which is inferior to the Manufacturing Award, employees would not be disadvantaged in that regard (the superior term applying).
Having regard to the requirements of s 226 of the FW Act and based on the evidence before me, including the statutory declaration of Lynn Morcom of 15 February 2022 and the undertaking offered during the hearing, I am satisfied that:
employees have been given an opportunity to be heard on the application;
the employees are not opposing the application;
it is unlikely there will be any adverse effect on the employees as a result of termination of the Agreement;
it is not contrary to the public interest to terminate the Agreement; and
it is appropriate to terminate the Agreement taking into account all of the circumstances.
In accordance with s 227 of the FW Act, the termination took effect from 11:59pm on 18 March 2022. An Order[1] to this effect is issued.
DEPUTY PRESIDENT
Appearances:
L Morcom, of and on behalf of, Genpower/ASCA (now Genpower Australia Pty Ltd) T/A Genpower Australia aft Genpower Trust
Hearing details:
2022
Adelaide (by telephone)
18 March
[1] PR739438
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