Kalari Pty Ltd T/A Kalari Pty Ltd

[2022] FWCA 2424

[2022] FWCA 2424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Kalari Pty Ltd T/A Kalari Pty Ltd

(AG2022/2187)

Kalari Pty Ltd Alcoa (WAO) Drivers Enterprise Agreement 2010

Road transport industry
COMMISSIONER HUNT	BRISBANE, 22 JULY 2022

Application for termination of the Kalari Pty Ltd Alcoa (WAO) Drivers Enterprise Agreement 2010

1. On 28 June 2022, Kalari Pty Ltd T/A Kalari Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Kalari Pty Ltd Alcoa (WAO) Drivers Enterprise Agreement 2010 (the Agreement). The Agreement has passed its nominal expiry date.

1. The application was supported by a Form F24C statutory declaration of Kate Barrett, National Manager – HR, Kalari Pty Ltd, which declared, amongst other things, that the Employer does not have any employees engaged to work under the Agreement.

1. The Transport Workers’ Union of Australia (the TWU) is an organisation which is covered by the Agreement. Correspondence was sent to the TWU on 8 July 2022, inviting the TWU to provide views, if any, as to whether it objects to the termination of the Agreement. No views were received.

Legislative provisions

1. Chapter 2, Part 2-4, Division 7, Subdivision D is as follows:

“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.”

Consideration

1. Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before which raises public interest considerations which might militate against the termination of the Agreement.

1. As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement. The views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

1. In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

1. In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The termination will take effect from today, 22 July 2022.

COMMISSIONER

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