Kelp Industries Pty Ltd

[2015] FWCA 7615

[2015] FWCA 7615

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kelp Industries Pty Ltd
(AG2015/2808)

KELP INDUSTRIES PTY LTD ENTERPRISE AGREEMENT 2010

Tasmania
COMMISSIONER LEE	MELBOURNE, 24 NOVEMBER 2015

Application for termination of the Kelp Industries Pty Ltd Enterprise Agreement 2010.

[1] An application has been made by Kelp Industries Pty Ltd (the Applicant) to terminate the Kelp Industries Pty Ltd Enterprise Agreement 2010 (the Agreement) under section 225 of the Fair Work Act 2009 (the Act).

[2] Subdivision D of Division 7 of Part 2-4 of the Act, at sections 225-226 provides;

“Subdivision D—Termination of enterprise agreements after nominal expiry date

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.”

[3] The Agreement was approved by Senior Deputy President Hamberger on 26 October 2010. The nominal expiry of the Agreement is 1 November 2014. The Applicant is covered by the Agreement and is entitled to make application to the Fair Work Commission (the Commission) to terminate the Agreement pursuant to s.225 of the Act.

[4] The application was lodged on 26 May 2015. The matter was listed for telephone conference before me on 11 June 2015. At the telephone conference I discussed with the parties what further information I required in order to determine the application. Subsequent to the telephone hearing, I wrote to the Applicant setting out the further information required. I asked that this further information be provided to me in the form of a statutory declaration.

[5] I was advised by the Applicant’s representative that the appropriate contact at the Applicant was taking a period of extended leave. The Applicant’s representative sought an extension for filing the statutory declaration until the contact returned from overseas. An extension was granted to 5 October 2015.

[6] In accordance with my request, the Applicant provided a statutory declaration declared by Mr John Hiscock, General Manager.

[7] Mr Hiscock states that the Agreement has substantially similar terms to those found in the applicable modern award (the Aquaculture Industry Award 2010). Mr Hiscock states that the only substantial difference is the higher rate of pay, which the Employer will be maintaining.

[8] Mr Hiscock states that the Applicant notified employees of the application by written notice, as directed by me in my letter. The notice advised of the application and notified employees that the application had been allocated to me. The notice provided that if any employees had any views about the application to terminate the Agreement, they were to advise my chambers by email or by calling by telephone. The notice was placed on a notice board which was visible and easily accessible to all staff.

[9] Mr Hiscock states that a meeting was held with employees on 25 September 2015 to explain the application.

[10] No responses or queries from employees were received by my chambers.

[11] Pursuant to s.225 of the Act, I have considered, and am satisfied as to each of the matters contained in s.226 of the Act. Accordingly, the Agreement is terminated.

[12] The termination will come into effect from 24 November 2015.

COMMISSIONER

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