Giacci Bros Pty Ltd
[2024] FWCA 554
•12 FEBRUARY 2024
[2024] FWCA 554
The attached document replaces the document previously issued with the above code on 12 February 2024
Agreement title added to Subheading.
Associate to Commissioner Lim
Dated 13 February 2024
| [2024] FWCA 554 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Giacci Bros Pty Ltd
(AG2024/108)
GIACCI BROS PTY LTD WESTERN AUSTRALIA AGREEMENT 2018
| Road transport industry | |
| COMMISSIONER LIM | PERTH, 12 FEBRUARY 2024 |
Application for termination of the Giacci Bros Pty Ltd Western Australia Agreement 2018
Giacci Bros Pty Ltd (Applicant) has applied to the Fair Work Commission (Commission) to terminate the the Giacci Bros Pty Ltd Western Australia Agreement 2018 (Agreement) after its nominal expiry date (Application). The Application is made pursuant to s 225 of the Fair Work Act 2009 (Cth) (Act).
The Agreement is a single enterprise agreement, and its nominal expiry date was 30 May 2022. The Transport Workers’ Union (TWU) is a party to the Agreement.
In support of the Application, the Applicant filed a statutory declaration from their National Human Resources Advisor, Ms Brooke McNamara.
The Application indicates that there are no employees currently covered by the Agreement. Correspondence was sent from my Chambers requesting that the TWU indicate whether it objects to the Application and that any views should be provided as soon as possible, but by no later than 4:00pm (AWST) on 31 January 2024. No correspondence has been received from the TWU.
The Applicant submits that they have not engaged any employees under the Agreement since the nominal expiry date as a result of employees being covered by new enterprise agreements that were established during the renewal process.
The Applicant submits that employees that were previously engaged under the Agreement are now covered by:
· Giacci Bros Pty Ltd Geraldton Transport Agreement 2022
· Giacci Bros Pty Ltd Picton Transport Enterprise Agreement 2022
· Giacci Bros Pty Ltd Rockingham Transport Enterprise Agreement 2022
· Giacci Bros Pty Ltd Chandala Transport Enterprise Agreement 2022
The matter will now be determined on the material before me.
Legislative provisions
Sections 225, 226 and 227 of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) provide that:
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 the 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 Terminating an enterprise agreement after its nominal expiry date
(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC
must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to
any other relevant matter.
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.
Consideration
I am satisfied that the termination of the Agreement is not contrary to the public interest.
I consider that in the circumstances it is appropriate to terminate the Agreement. The views of the employer have been taken into account and I accept Ms McNamara’s evidence in her statutory declaration that there are no employees covered by the Agreement.
There is no evidence before me suggesting that there is bargaining for a new enterprise agreement. It follows that the termination of the Agreement would not have any detrimental impact or result in a shift in bargaining power, in relation to enterprise bargaining, for the Applicant or other relevant party. Further, there does not appear to be any other relevant matter that warrants consideration.
Accordingly, the Giacci Bros Pty Ltd Western Australia Agreement 2018 is terminated.
Pursuant to s 227 of the Act, the termination is to take effect on and from the date of this decision. An Order[1] to this effect is issued concurrently with this decision.
COMMISSIONER
[1] PR771130
Printed by authority of the Commonwealth Government Printer
<AE503568 PR771123>
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