Hartfell Pty Ltd T/A Emerald Carrying Company

[2021] FWCA 5930

[2021] FWCA 5930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Hartfell Pty Ltd T/A Emerald Carrying Company
(AG2021/6985)

EMERALD CARRYING COMPANY COLLECTIVE AGREEMENT 2012

Road transport industry
COMMISSIONER HUNT	BRISBANE, 23 SEPTEMBER 2021

Application for termination of the Emerald Carrying Company Collective Agreement 2012.

[1] On 31 August 2021, Hartfell Pty Ltd T/A Emerald Carrying Company (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Emerald Carrying Company Collective Agreement 2012 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a Form F24C statutory declaration of Ms Tamara Lette, Human Resources Manager, which declared, amongst other things, that current employees covered by the Agreement will, on termination of the Agreement, be assured by way of a common law agreement that their existing terms will not be altered to their detriment.

[3] The Employer provided copies of correspondence sent to employees in October 2020 advising them that it intended to seek termination of the Agreement, and their conditions will be honoured by way of a common law contract. A roll of employees who attended meetings convened by the Employer was provided.

[4] The Employer provided four signed statements of employees, each of which briefly stating that they support termination of the Agreement. A comparison table was provided for consideration.

[5] On 2 September 2021, I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 3 September 2021, I received confirmation from the Employer that it had complied with the above direction. The employees covered by the Agreement were invited to provide any views relevant to the application. I did not receive any correspondence from any of the employees to my chambers by 13 September 2021.

Termination of an enterprise agreement after its nominal expiry date

[6] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which are 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 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 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.

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

[7] Based on the material contained in the statutory declaration of Ms Lette, and in consideration of s.226(a) of the Act, I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] There are 57 employees covered by the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

[9] I have had regard to the comparison table provided by the Employer, detailing the differences between the employees’ wages under the Agreement and what would apply if the Agreement is terminated. I note the Agreement provides guaranteed overtime for some employees, however non-rostered overtime is payable only at time and a half and doesn’t increase to doubletime. I am satisfied employees will be in a better position if the Agreement is terminated.

[10] Having taken into account the circumstances of the employees and the likely effect that the termination will have on the employees, together with the Employer’s desire to terminate the Agreement, I consider that it is appropriate to terminate the Agreement.

[11] In accordance with s.226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[12] The termination will take effect from today, 23 September 2021.

COMMISSIONER

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