John Sands Australia

[2013] FWCA 1481

[2013] FWCA 1481

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

John Sands Australia
(AG2013/4971)

JOHN SANDS WAREHOUSE ENTERPRISE AGREEMENT 2006-2009

Storage services
COMMISSIONER LEE	MELBOURNE, 8 MARCH 2013

Application for termination of the John Sands Warehouse Enterprise Agreement 2006-2009.

[1] This matter involves an application made by P-MAC Electrical Pty Ltd (the Applicant) for termination of the John Sands Warehouse Enterprise Agreement 2006-2009 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the FW Act) and Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] The agreement is a collective agreement-based transitional instrument and has a nominal expiry date of 28 February 2009.

[3] Item 16 of Schedule 3 to the Transitional Act provides;

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[1] Subdivision D of Division 7 of Part 2-4 of the Act, at sections 225 - 227, states;

“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.”

[2] The Agreement has passed its nominal expiry date. The employer covered by the Agreement has made and is entitled to make application to the Fair Work Commission to terminate the agreement.

[3] The application was lodged on 13 February 2013. On 20 February 2013, I wrote to the Applicant seeking further information with regard to the requirements of s.226 of the Act I asked that this information be provided to me in the form of a statutory declaration.

[4] On 27 February 2013, I received a statutory declaration from the Applicant which stated that all employees were made redundant in 2010. The statutory declaration stated that the Applicant does not intend to re-open or employ persons who perform warehousing operations. The statutory declaration stated that no employees are covered by the Agreement.

[5] On 28 February 2013, I wrote to the National Union of Workers (NUW), an employee organisation covered by the Agreement, to seek their views as to the application.

[6] On 8 March 2013, I received a letter dated 6 March 2013 from Mr Tim Kennedy, Victorian Branch Secretary of the NUW, who advised that the NUW would not be opposing the application. Mr Kennedy confirmed the information provided by the Applicant that there are no employees currently covered by the Agreement.

[7] Given the above, I am satisfied, in accordance with s. 226(a) of the Act, that it is not contrary to the public interest to terminate the agreement. I am also satisfied, in accordance with s. 226(b) that it is appropriate to terminate the agreement having regard to the circumstances of the matter. I am therefore required by s.226 of the Act to terminate the agreement.

[8] The termination of the agreement shall operate from the date of this decision.

COMMISSIONER

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