KIS Developers Pty Ltd - The Trustee for the Glenn Clark Family Trust T/A Newstead Newsagency

[2021] FWCA 1053

[2021] FWCA 1053

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

KIS Developers Pty Ltd - The Trustee for the Glenn Clark Family Trust T/A Newstead Newsagency
(AG2021/24)

KIS DEVELOPERS PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 3 MARCH 2021

Application for termination of the KIS Developers Pty Ltd Employee Collective Agreement 2009.

[1] On 7 January 2021, KIS Developers Pty Ltd - The Trustee for the Glenn Clark Family Trust T/A Newstead Newsagency applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the KIS Developers Pty Ltd Employee Collective Agreement 2009 (Agreement). The Agreement nominally expired on 6 August 2014 and the Applicant is the employer covered by the Agreement.

[2] For the reasons that follow I have decided that it is appropriate to terminate the Agreement.

Context

[3] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Item 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (FW Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[4] Part 2-4, Division 7, Subdivision D of the FW Act contains the following provisions:

“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

[5] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s 225(a) of the FW Act.

[6] The statutory declaration filed by the Applicant in support of the application 1 provides that there are three employees that remain covered by the Agreement who were actively consulted regarding the application for termination of the Agreement. Directions were issued seeking a response from these employees regarding their views, their circumstances, and the likely effect that the termination of the Agreement will have on them. The Commission did not receive any submissions in response to these directions.

[7] The effect of terminating the Agreement will be that the modern award will cover and apply to the relevant employees. Based on the material contained in the statutory declaration filed with the application, 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 s 226(b)(i) and (ii) of the FW Act, I consider that it is appropriate to terminate the Agreement.

[8] The Agreement is terminated. The termination will operate from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AC329262  PR727316>

 1   Declared by Louise Kay Clark dated 5 January 2021