Jason Jarvis

[2018] FWCA 5580

[2018] FWCA 5580

FAIR WORK COMMISSION

decision

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3—Termination of transitional instrument

Jason Jarvis

(AG2018/2218)

BALD HILL QUARRY PTY LTD COLLECTIVE AGREEMENT 2007-2010

[AC308119]

Quarrying industry
Senior Deputy President Hamberger	SYDNEY, 5 SEPTEMBER 2018

Termination of the Bald Hill Quarry Pty Ltd Collective Agreement 2007-2010.

1. On 25 May 2018, Jason Jarvis (the applicant) applied to the Fair Work Commission (the Commission) for the termination of the Bald Hill Quarry Pty Ltd Collective Agreement 2007-2010 (the agreement). At the time Mr Jarvis made his application, he was an employee covered by the agreement.

1. The agreement is a collective agreement-based transitional instrument.

1. Applications such as this are made under subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act). That subdivision provides as follows:

‘Subdivision D—Termination of enterprise agreements after nominal expiry date

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.’

1. In his application, Mr Jarvis said that the agreement restricts him and other casual employees from obtaining full-time employment.

1. Bald Hill Quarry Pty Ltd (Bald Hill or the respondent) has 28 employees covered by the agreement, engaged in quarrying, landfill operation, transport, administration and contract crushing. It has 20 permanent employees, one apprentice and seven casual employees.

1. The respondent said that while the agreement does not include a casual conversion clause, it has not prevented employees from transitioning to permanent employment. It noted that some employees prefer to remain casual employees because of the loading, others perform work where it is not possible to provide continuous employment, and, in some cases, the respondent does not consider that an employee is suited to being integrated into the permanent workforce.

1. The respondent provided a spreadsheet that indicated that the base hourly rate paid to all the employees is substantially in excess of that provided in the award that would apply if the agreement was terminated, being the Quarrying Award 2010 (the award).

1. The respondent said that it was willing to consult with employees to revise the agreement to incorporate provisions within the award that are not presently included.

1. No employees other than the applicant indicated their support for the application. 13 employees wrote to the Commission opposing the application. Most of those employees added the following:

‘We understand the company plans to review and update the Agreement in consultation with us to ensure compliance with the national quarry award.’

Consideration

1. While the rates actually paid to the respondent’s employees are well in excess of those in the award, I note that these rates are also well above the minimum rates provided for in the agreement.

1. The respondent has indicated that it is willing to consult with employees to revise the agreement to bring it into line with the award more generally. While a substantial proportion of the employees have told the Commission they do not support termination of the agreement, this appears to be at least partly premised on this indication by the respondent.

1. Transitional instruments such as the agreement can only be varied in limited circumstances. Doing what the respondent has indicated it is willing to do would involve making a new enterprise agreement under the FW Act to replace the current agreement.

1. There is nothing before me that suggests that it would be contrary to the public interest to terminate the agreement, and I consider that it would not be.

1. In all the circumstances, and having regard to the views of the employees and the employer, I consider that it would be appropriate to terminate the agreement, but with a relatively lengthy delay in effect, in order to provide the employer and employees concerned with the time to negotiate a new enterprise agreement.

Conclusion

1. The agreement is terminated with effect from 1 May 2019.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AC308119 PR700100>