Keycut Services Pty Ltd

[2020] FWC 4164

[2020] FWC 4164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Keycut Services Pty Ltd

(AG2020/1992)

KEYCUT SERVICES PTY LTD COLLECTIVE AGREEMENT 2013

Commissioner Cirkovic MELBOURNE, 7 AUGUST 2020

Application for termination of the Keycut Services Pty Ltd Collective Agreement 2013.

1. Keycut Services Pty Ltd, the Applicant, made an application to the Fair Work Commission (the Commission) pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Keycut Services Pty Ltd Collective Agreement 2013 (the Agreement).

1. The Agreement came into operation on 22 August 2013 and its nominal expiry date is 22 August 2017.

1. Directions were issued on 10 July 2020, requiring the Applicant to serve the directions and its application on any employees covered by the Agreement and inviting any such employee to respond to the application. There was no response from any such employees.

1. The Applicant declares in the statutory declaration of Ms Gayle Denise Lorraway declared 3 July 2020 (the Statutory Declaration) that there are 19 employees covered by the Agreement.[1]

1. I determined that it was appropriate to decide this matter on the papers.[2]

Legislation

1. Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passed its nominal expiry date. Section 225 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.”

1. Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

1. As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to section 225(a) of the Act.

Public Interest

1. The Statutory Declaration states that:

“1. termination of the Collective Agreement is a condition under a current contract for the sale of the business.

2. the proposed purchaser of the business has addressed the employees and answered any questions they had in relation of working under relevant award as against the Enterprise Agreement.”[3]

1. In the circumstances and having regard to all the material before me, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to section 226(a) of the Act.

Views, Circumstances and Likely Effect of Termination

1. No employee organisations are covered by the Agreement.[4]

1. No employee provided any material in objection to the application.

1. The Applicant states in the Statutory Declaration that:

“Of the 19 employees who were eligible to vote, 17 voted and of that number 16 voted in favour of terminating the Enterprise Agreement…The majority vote was to terminate the Enterprise Agreement.”[5]

1. In addition, the Applicant provided to the Commission evidence of the process of conducting the vote and its outcome.

1. Taking into account all the circumstances prescribed by section 226(b)(i)-(ii) of the Act, I consider that it is appropriate to terminate the Agreement.

Conclusion

1. For the reasons above, the Agreement must be terminated pursuant to section 226 of the Act.

1. The termination will take effect from 7 August 2020.

COMMISSIONER

[1] Form F24C dated 3 July 2020 at 2.1.

[2] The Applicant and employees covered by the Agreement did not object to this approach.

[3] Form F24C dated 3 July 2020 at 2.3.

[4] Form F24B dated 3 July 2020.

[5] Form F24C dated 3 July 2020 at 2.1.

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