Kalari Pty Ltd T/A Kalari Pty Ltd Summary

[2022] FWCA 2442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Kalari Pty Ltd T/A Kalari Pty Ltd

(AG2022/2182)

Kalari Pty Ltd (Brisbane Local Drivers) Enterprise Agreement 2010

Road transport industry
COMMISSIONER HUNT	BRISBANE, 22 JULY 2022

Application for termination of the Kalari Pty Ltd (Brisbane Local Drivers) Enterprise Agreement 2010

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 (Brisbane Local Drivers) Enterprise Agreement 2010 (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

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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Kalari Pty Ltd sought to terminate the Kalari Pty Ltd (Brisbane Local Drivers) Enterprise Agreement 2010. The application was made to the Fair Work Commission. The nature of the dispute was that Kalari Pty Ltd, an employer, was seeking to terminate the enterprise agreement governing the terms and conditions of employment of its local drivers in Brisbane. The drivers, represented by a union, opposed the termination.

The legal issues before the Commission were whether the conditions for terminating an enterprise agreement under section 230 of the Fair Work Act 2009 were met. The relevant conditions include whether the agreement was no longer in operation, whether the agreement had expired, or whether there had been a change in the circumstances of the parties that justified termination. Additionally, the Commission had to consider whether there was a genuine attempt to negotiate in good faith, as required by section 230(2)(b) of the Act.

In its decision, the Fair Work Commission found that the enterprise agreement was no longer in operation as it had been superseded by a new agreement. The Commission determined that there was no requirement for a good faith negotiation process as the agreement had expired. The Commission held that the conditions for termination were satisfied, and the application was approved. The Commission emphasised that the termination of the agreement would not adversely affect the drivers, as the new agreement provided for their continued employment on terms and conditions that were not less favourable than those under the old agreement.

The Fair Work Commission terminated the Kalari Pty Ltd (Brisbane Local Drivers) Enterprise Agreement 2010, effective from the date of the decision. The new agreement, which was in place and provided for the drivers' continued employment, would govern their terms and conditions of employment. The Commission did not make any orders regarding costs or other matters, as the primary focus was on the validity of the termination process.

Kalari Pty Ltd T/A Kalari Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established