Intermodal Group Pty Ltd T/A Intermodal Link Services Pty Ltd
[2019] FWCA 4508
•28 JUNE 2019
| [2019] FWCA 4508 |
| 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
Intermodal Group Pty Ltd T/A Intermodal Link Services Pty Ltd
(AG2019/1164)
INTERMODAL LINK SERVICES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009 ADMINISTRATION STAFF
Clerical industry | |
DEPUTY PRESIDENT BINET | PERTH, 28 JUNE 2019 |
Application for termination of the Intermodal Link Services Pty Ltd Employee Collective Agreement 2019 Administration Staff.
[1] Intermodal Group Pty Ltd T/A Intermodal Link Services Pty Ltd (Intermodal) has made an application (Application) to the Fair Work Commission (FWC) pursuant to Schedule 3 Item 16 of the Fair Work Act 2009 (Cth) (FW Act) to terminate the Intermodal Link Services Pty Ltd Employee Collective Agreement 2009 Administration Staff (Agreement).
[2] For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act, the Agreement may be terminated pursuant to section 226 of the FW Act.
[3] Section 226 of the FW Act states:
“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.”
[4] Section 225 of the FW Act states:
“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.”
[5] The parties to the Agreement are Intermodal and its employees working in the State of Western Australia employed in the classifications of Receptionist, Accounts Clerk, Administration Assistant or Customer Service Clerk (Employees).
[6] There are no employee organisations covered by the Agreement.
[7] The Agreement has a nominal expiry date seven (7) days and five (5) years after the date of issue of the notice of the Workplace Authority that the Agreement meets the No Disadvantage Test. A notice confirming that the Agreement met the No Disadvantage Test was issued on 17 September 2009.
[8] Intermodal has filed a Statutory Declaration by Mr Paul Haigh, Vice President at Intermodal (Haigh Declaration). The Haigh Declaration asserts that the Agreement expired in 2014 and indicates that the reason for the Application is to permit Employees to be transitioned to employment contracts more relevant to their roles and to ensure remuneration reviews are undertaken.
[9] According to Mr Haigh he consulted with all Employees who are currently covered by the Agreement and after explaining his rationale for the Application all Employees indicated that they were in favour of the Application.
[10] In support of the Application Intermodal tendered a comparison table which indicated that Employees will be better off overall under the applicable Award than the Agreement in the event that the Agreement was terminated.
[11] On 7 May 2019, directions were issued to Intermodal (Directions) requiring it to file submissions in support of the Application (Submissions). The Directions required Intermodal to provide a copy of the Application, the Submissions, the Haigh Statutory Declaration and the Directions to all Employees.
[12] The Directions invited any Employee who wished to be heard in relation to the Application to contact Chambers by 23 May 2019. No correspondence from received from any Employee by this date.
Consideration
[13] The leading authority with respect to the operation of section 225 of the FW Act is a decision of a Full Bench of the FWC in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd (Aurizon) [2015] FWCFB 540. The Full Bench remarked at [126]:
“The legislative scheme therefore enables and facilitates good faith bargaining for an enterprise agreement. It also facilitates the making of enterprise agreements but does not mandate that result. Once an enterprise agreement is made and approved by the Commission, it seems clear that the legislative scheme does not intend that such agreements operate in perpetuity. Agreements have a finite nominal life. At the end of the nominal life of an agreement, bargaining parties may bargain for a new agreement utilising all of the tools available under the Act; or a person to whom an agreement applies may take steps to bring the agreement to an end in accordance with the provisions of the Act; or both may occur.”
[14] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.
[15] The Agreement expired more than four years ago. In the event that the Agreement is terminated Employees will be entitled to the benefit of the underpinning modern Award. Employees have indicated their support for the termination of the Agreement.
[16] Based on the materials filed by Intermodal, in consideration of section 226(a), and having regard to the decision in Aurizon, there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.
[17] Pursuant to section 225 of the FW Act and having considered the material before me relevant to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, I am satisfied that it is appropriate to terminate the Agreement.
[18] The termination will come into effect from 28 June 2019.
DEPUTY PRESIDENT
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