International Protein Pty Ltd

[2023] FWCA 915

[2023] FWCA 915

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

International Protein Pty Ltd

(AG2023/264)

Commercial sales
DEPUTY PRESIDENT LAKE	BRISBANE, 28 MARCH 2023

Application for termination of the International Protein Enterprise Agreement 2013

1. International Protein Pty Ltd (International Protein) made an application for the termination of the International Protein Enterprise Agreement 2013 (the Agreement) to the Fair Work Commission (the Commission) pursuant to s.225 of the Fair Work Act 2009 (the Act). The Agreement has passed its nominal expiry date on 31 October 2017, being five years from the date the Agreement was approved. The Agreement applies to all employees hired under International Protein Pty Ltd.

1. Section 225 of the Act provides:

“225    Application 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.”

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amended s.226 of the Act. The amendments took effect from 7 December 2022 and relevantly provide as follows:

“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 223, 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.”

1. Section 227 of the Act provides when termination comes into operation:

“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.”

1. The employer has applied for the termination of this Agreement. The Applicant lodged a Form F24B and Form 24C which was completed by Ms Romie Younes as Office Manager. Ms Younes states that there is no economic gain or advantage compared to the Awards and the Enterprise Agreement was used to combine the two relevant awards (Commercial Sales Award and the Clerks Award) into one overarching document.

1. The application and declaration were served on the employees still covered by the Agreement on 9 February 2023. The employees were notified of the intention to terminate the Enterprise Agreement on 1 February 2023 and was given an opportunity to respond by 8 February 2023 regarding termination of the Enterprise Agreement. No responses were received.

1. There is no employee organisation covered by the Agreement.

1. I am satisfied that the continued operation of the agreement would be unfair to be employees covered by the agreement as it would place them at a disadvantage compared with the relevant Awards (Clerks Private Sector Award 2020 and Commercial Sales Award 2020).

1. The termination will operate from the date of this decision.

DEPUTY PRESIDENT

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