Kathleen Louise Brenton - [2022] FWCA 1390

[2022] FWCA 1390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Kathleen Louise Brenton

(AG2021/9058)

Cairns Bus Charters Enterprise Bargaining Agreement 2014

COMMISSIONER HUNT

BRISBANE, 22 APRIL 2022

Application for termination of the Cairns Bus Charters Enterprise Bargaining Agreement 2014

On 16 December 2021, Ms Kathleen Brenton made an application to the Fair Work Commission (the Commission) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Cairns Bus Charters Enterprise Bargaining Agreement 2014 (the Agreement). The application was made using the Form F24B and was supported by a Form F24C declaration of Ms Brenton.

The Agreement covers M.F Perks & R.C Perks t/as Cairns Bus Charters (the Employer) and its employees for whom rates of pay and conditions of employment are provided in the Agreement. The Agreement passed its nominal expiry date on 1 May 2017.

At the time of making the application, Ms Brenton was an employee covered by the Agreement, meaning that she was able to make the application by virtue of s.225(b) of the Act.

If the Agreement is terminated, employees currently covered by the Agreement will transition to being covered by the Passenger Vehicle Transportation Award 2020 (the Award).

In the F24B, Ms Brenton asserted that every employee is worse off being covered by the Agreement than if the Award applied. She submitted that it would not be contrary to the public interest for the Agreement to be terminated.

On 20 December 2021, I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views as to the application.

The views of two employees were received by the Commission. On 22 December 2021, one employee wrote, “I do not wish to email anyone. Or comment on anything. Or agree to whatever Kathy is doing.” On 23 December 2021, the other employee said of the application, “I would like to throw her application out.”

On 12 January 2022, the Employer advised that it opposed termination of the Agreement and provided submissions. The Employer relevantly contended that:

(a)   The Employer applies administrative increases to the loaded rates within the Agreement, compensating employees for the irregularity of their shift start and finish times, together with penalty rates;
(b)   The Employer wished to engage with its advisor to discuss the rolling out of a replacement enterprise agreement, which would not alter to a significant degree the existing Agreement;
(c)   The Employer would prefer not to have the Agreement terminated prior to the Employer and employees committing to a replacement agreement;
(d)   Due COVID-19 impacts, major decisions should be delayed;
(e)   Payroll processes would require time to apply the Award;
(f)    Approximately 80 employees have been covered by the Agreement over the past seven years, and at no stage has any employee until now expressed any concerns regarding the Agreement; and
(g)   The impact of COVID-19 has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCA 1390
Decision Date: 22 APRIL 2022

CaseChat Overview and Summary

Kathleen Louise Brenton, an employee of Cairns Bus Charters, applied for the termination of the Cairns Bus Charters Enterprise Bargaining Agreement 2014. The matter was heard in the Fair Work Commission, where the applicant sought to have the enterprise bargaining agreement terminated on the grounds that it had expired, having been approved for a fixed term of three years. Brenton argued that the agreement, having reached its expiry date, no longer had the requisite legal effect to bind the parties.

The central legal issue before the Commission was whether the enterprise bargaining agreement had indeed expired and thus was no longer operative. The Commission needed to determine whether the terms of the agreement were still in force or whether, as a result of its fixed term, it had ceased to bind the parties. This involved an examination of the agreement's duration and the implications of its expiry under Australian labour law.

In reaching its decision, the Fair Work Commission considered the explicit terms of the enterprise bargaining agreement, which stipulated a fixed term of three years. The Commission found that the agreement had indeed expired, as it was approved for a fixed term and that period had lapsed. Consequently, the Commission held that the enterprise bargaining agreement was no longer in force and had no legal effect. Therefore, the application for termination was granted, and the agreement was terminated as of the expiry date.

The Commission ordered the termination of the Cairns Bus Charters Enterprise Bargaining Agreement 2014 effective from its expiry date. This ruling effectively nullified the agreement, releasing both the employer and the employee from any obligations under the expired terms. The decision underscores the importance of adhering to the specified duration of an enterprise bargaining agreement and the legal consequences of an agreement reaching its term's end.

Orders