Kalari Pty Ltd

[2016] FWCA 3511

[2016] FWCA 3511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Kalari Pty Ltd
(AG2016/735)
(AG2016/736)
(AG2016/737)

Application for termination of the Kalari Western Australia Workshop Pty Ltd Enterprise Agreement 2012-2015.

Application for termination of the Kalari Pty Ltd Alcoa and BHP Drivers Enterprise Agreement 2013.

Application for termination of the Kalari Pty Ltd Western Australia Long Distance Drivers Enterprise Agreement 2011-2014.

Road transport industry

Manufacturing and associated industries

DEPUTY PRESIDENT BINET

PERTH, 14 JULY 2016

[1] This decision concerns applications (Applications) made by Kalari Pty Ltd (Kalari) for the termination of three Enterprise Agreements: the Kalari Western Australia Workshop Pty Ltd Enterprise Agreement 2012-2015, Kalari Pty Ltd Alcoa and BHP Drivers Enterprise Agreement 2013 and Kalari Pty Ltd Western Australia Long Distance Drivers Enterprise Agreement 2011-2014 (Agreements) pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreements are single enterprise agreements made pursuant to section 185 of the FW Act with nominal expiry dates of 28 November 2015, 31 October 2015 and 6 February 2015, respectively.

[3] The Transport Workers’ Union of Australia (TWU) is a party to the Kalari Pty Ltd Alcoa and BHP Drivers Enterprise Agreement 2013 and the Kalari Pty Ltd Western Australia Long Distance Drivers Enterprise Agreement 2011-2014.

[4] Section 225 of the FW Act allows an employer to apply to the Fair Work Commission (FWC) for the termination of an agreement that has passed its nominal expiry date.

[5] Section 226 of the FW Act, set out below, details the considerations for the FWC when dealing with such an application.

“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.”

[6] Kalari provided, in support of its Applications, statutory declarations from Mr Peter O’Shannessy (Mr O’Shannessy) who is the Managing Director of Kalari. In response to a request from my chambers for further information, an additional statement was subsequently filed by Mr Warren Swain who is an industrial relations advisor for Kalari.

[7] The TWU was directed to file submissions in response and any evidence on which it sought to rely in relation to those Applications with respect to those agreements to which the TWU was a party.

[8] The submissions filed by Kalari and the TWU reveal that:

a. Following the sale of its business based at East Rockingham in Western Australia in October 2014 to Giacci Bros Pty Ltd (Giacci Bros) Kalari no longer has any employees covered by the Agreements.

b. In October 2014 Giacci Bros applied for an order that the Giacci Brothers Pty Ltd Western Australia Enterprise Agreement 2013 (Giacci Agreement) would cover Giacci Bros, any transferring employees from Kalari or any non-transferring employee who performed the same or substantially the same work as previously performed at the depot by Kalari employees and that the Kalari Western Australia Workshop Pty Ltd Enterprise Agreement 2012-2015 and Kalari Pty Ltd Alcoa and BHP Drivers Enterprise Agreement 2013 would not. An order in these terms was issued by Commissioner Cargill on 30 October 2014 [PR557224].

c. Giacci Bros do not conduct any long distance operations from the yard.

d. The rates of pay under the Giacci Agreement are higher than those which applied under the Agreements.

[9] Both Kalari and the TWU submit that it is appropriate to terminate the Agreements and that it is not contrary to the public interest to do so.

[10] In the absence of any evidence to the contrary I am satisfied that termination of the Agreements is not contrary to the public interest.

[11] Based on the material that is before me, including the submissions filed by the TWU, I am satisfied that the termination of the Agreements to which the TWU is a party would not have any effect on either the TWU or any of its members.

[12] Taking into account the views of both Kalari and the TWU I consider in the circumstances that it is appropriate to terminate the Agreements.

[13] Accordingly, the Agreementsare terminated. The terminations are to take effect on and from the date of this decision.

DEPUTY PRESIDENT

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<Price code A, AE899411, AE400959, AE891270, PR581006>