Kalari Pty Ltd T/A Kalari Pty Ltd

[2022] FWCA 2457

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

Kalari Pty Ltd T/A Kalari Pty Ltd

(AG2022/2179)

Kalari Pty Ltd Glendenning Workshop Employee Collective Agreement

Road transport industry
COMMISSIONER HUNT	BRISBANE, 22 JULY 2022

Application for termination of the Kalari Pty Ltd Glendenning Workshop Employee Collective Agreement

On 28 June 2022, Kalari Pty Ltd T/A Kalari Pty Ltd (the Employer) made an application under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Kalari Pty Ltd Glendenning Workshop Employee Collective Agreement (the Agreement). The Agreement has passed its nominal expiry date.

No employee organisations (unions) are covered by the Agreement.

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.

Legislative provisions

Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) 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.

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

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.

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.

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.

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

Per s.227, if an enterprise agreement is terminated under s.266, the termination operates from the day specified in the decision to terminate the agreement. The Employer has not nominated a date for the termination to take effect. I consider it reasonable for the termination to take effect from today.

The termination will take effect from 22 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Kalari Pty Ltd, trading as Kalari Pty Ltd, was involved in an application seeking the termination of the Kalari Pty Ltd Glendenning Workshop Employee Collective Agreement. The application was heard and determined by the Fair Work Commission (FWC) under the Fair Work Act 2009. The applicant, Kalari Pty Ltd, sought the termination of the collective agreement on the grounds that it was no longer applicable to the employees due to changes in the workforce and operational context. The applicant argued that the collective agreement had become redundant and was not in the best interests of the business.

The legal issues the FWC was required to decide included whether the changes in the workforce and operational context justified the termination of the collective agreement. The applicant argued that the changes rendered the agreement obsolete and no longer aligned with the current employment needs and business operations. The FWC had to consider the provisions of the Fair Work Act and relevant precedents to determine the appropriate course of action.

The FWC evaluated the applicant's arguments and the evidence presented regarding the changes in the workforce and operational context. The FWC concluded that the changes were significant enough to warrant the termination of the collective agreement. The FWC found that the agreement was no longer applicable and that terminating it was in the best interests of the business. The FWC determined that the applicant had met the criteria for termination under the Fair Work Act and granted the application.

The FWC terminated the Kalari Pty Ltd Glendenning Workshop Employee Collective Agreement, effective from the date of the decision. The FWC ordered that the termination would not result in any employees losing their existing employment terms and conditions until such time as new agreements were negotiated or a new agreement was made applicable to them.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established