Kentish Construction and Engineering Co Pty Ltd t/a Treloar Transport Co

[2019] FWCA 881

[2019] FWCA 881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Kentish Construction and Engineering Co Pty Ltd t/a Treloar Transport Co
(AG2018/6882)

KENTISH CONSTRUCTION & ENGINEERING CO. PTY LTD T/A TRELOAR TRANSPORT EMPLOYEE COLLECTIVE 2008

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 12 FEBRUARY 2019

Application for termination of the Kentish Construction & Engineering Co. Pty Ltd t/a Treloar Transport Employee Collective Agreement 2008

[1] On 12 December 2018, Kentish Construction and Engineering Co Pty Ltd t/a Treloar Transport (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act), to terminate the Kentish Construction & Engineering Co. Pty Ltd t/a Treloar Transport Employee Collective Agreement 2008 (Agreement). The Agreement covers the Applicant and employees of the Applicant referred to in clause 2.1 of the Agreement.

[2] The Agreement is an instrument that was made under the Workplace Relations Act 1996 and passed its nominal expiry date in 2014. It is a ‘collective agreement-based transitional instrument’ for the purposes of Item 16 of Schedule 3 of the TPCA Act. The effect of this item is that the termination of agreement provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (FW Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. In short, an application may be made to terminate the Agreement under s 225 of the FW Act.

[3] Section 225 of the Act provides:

“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.”

[4] Section 226 of the Act provides:

“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.”

[5] Mr Chris Treloar, operations manager of the Applicant, provided a statutory declaration in support of the application, in which he stated that the terms of the Agreement were less favourable than those of awards that would otherwise apply to the employment of relevant employees. The awards in question are the Building and Construction General On-site Award 2010, Clerks—Private Sector Award 2010, Vehicle Manufacturing, Repair, Services and Retail Award 2010 and the Road Transport and Distribution Award 2010. Mr Treloar also described in his declaration the steps taken by the company to explain to employees covered by the Agreement the company’s intention to apply to the Commission to terminate the Agreement, as well as a comparison of the conditions contained in the Agreement and the relevant awards. Mr Treloar said that employees were invited to express any views about the proposed application, but that no objections or concerns were raised and that employees agreed that the awards provided more beneficial conditions than the Agreement.

[6] On 9 January 2019, I directed the Applicant to provide employees covered by the Agreement with a copy of the application and directions that employees could send to my chambers any views they may have as to the application to terminate the Agreement by Friday, 25 January 2019.

[7] My chambers did not receive any views from employees in relation to the application.

[8] Returning to section 225, I note that at the time of the application, the Applicant was an employer covered by the Agreement, and therefore had the necessary standing under
s 225(a) to bring the application.

[9] Based on the material contained in the Applicant’s statutory declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances, including those in ss 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. I therefore terminate the Agreement.

[10] The termination will operate from 18 February 2019.

DEPUTY PRESIDENT

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<AC318112  PR704835>