Justin Ireland
[2024] FWCA 3520
•7 OCTOBER 2024
| [2024] FWCA 3520 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Justin Ireland
(AG2024/3198)
RGIS CASUAL EMPLOYEE AGREEMENT 2012
| Clerical industry | |
| COMMISSIONER JOHNS | MELBOURNE, 7 OCTOBER 2024 |
Application for termination of the RGIS Casual Employee Agreement 2012
On 21 August 2024, Mr. Justin Ireland (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the RGIS Casual Employee Agreement 2012 (the Agreement) under s.225 of the Fair Work Act 2009 (Cth) (the Act).
The nominal expiry date of the Agreement was 16 May 2017.
Section 226 of the Act provides as follows,
‘Terminating an enterprise agreement after its nominal expiry date
(1) 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 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.’
The Applicant relies on s.226(1)(a) as the ground for termination.
On 3 September 2024, the Applicant was directed to:
On 9 September 2024, RGIS Australia Employment Services Pty Ltd (the Employer) filed a statutory declaration in compliance with the Directions. Mr. Ali Emre Dengiz, Managing Director of RGIS Australia Employment Services Pty Ltd, declared that on 7 September 2024, all employees were emailed the relevant documents.
On 12 September 2024, the Employer emailed my Chambers requesting an extension until 1 October 2024 to inform whether it intends to oppose the termination of the Agreement. The extension was granted on the same day.
On 30 September 2024, the Employer emailed my Chambers, informing that it does intend to oppose the termination of the Agreement. The Employer stated that it is in discussions with the Fair Work Ombudsman and is awaiting advice on the most appropriate Award coverage. The Employer requested that any order for termination of the Agreement not take effect for at least 28 days to enable it to receive that advice and make the necessary preparations and adjustments to its business for the benefit of its employees.
There were no employee organisations covered by the Agreement (s.226(3)(c)), and my Chambers did not receive any emails opposing the agreement’s termination from the covered employees (s.226(3)(a)). Therefore, I must now determine the application before me based on the papers filed (i.e., Forms 24B and 24C).
Section 226(1)(a) – Unfairness
In respect of this ground, the Applicant stated the following:
“Given the current economic climate and the cost of living, the pay rates and expected hours to work on a weekend are not viable. Calculating the current remuneration vs unemployment benefits, 90% of the employees would be better off on Centrelink payments.
Travel to and from locations, cost of parking at sites and other incidental costs that are not factored into the very outdated current agreement are not viable, given today's economic climate.
I have witnessed employees in tears, not knowing they aren't being paid penalty rates and only being advised once onsite ready for the job.”
Section 226(1)(b) – Coverage
The Agreement covers a number of employees. Therefore, this ground was not relied upon by the Applicant in support of its application to terminate the Agreement.
Section 226(1)(c) – Viability of business, potential terminations of employment and termination entitlements
This ground was not relied upon by the Applicant in support of his application to terminate the Agreement.
Section s.226(5) – Other relevant matters
In respect of other relevant matters, the Applicant submitted the following:
“Today's and the future economic climate crisis. The cost of living is contributing to a wide range of mental health issues, including suicide. To have employees work for what can only be regarded as minimal wage, especially on a weekend is outdated, unfair and just disgusting in this day and age. How this agreement has been left in place, without review, so far past its nominated expiry date is beyond ridiculous.”
Conclusion
Having regard to the relevant statutory requirements set out above and the material filed by the parties, I am satisfied that the Applicant is the employee covered by the Agreement (s.225(a)). I am also satisfied that none of the criteria in s.226(4) apply and that there are no other relevant matters to consider (s.226(5)). Therefore, I am satisfied that all the requirements of s.226 of the Act have been met and it is appropriate in all the circumstances that the Agreement should be terminated.
The termination will come into effect in 28 days, on 4 November 2024. An order to that effect will be issued separately (PR780010).
COMMISSIONER
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