Kollaras & Co Pty Ltd
[2022] FWCA 1868
•7 JUNE 2022
| [2022] FWCA 1868 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Kollaras & Co Pty Ltd
(AG2022/1489)
Kollaras Group Enterprise Agreement 2014-2018
| Storage services | |
| COMMISSIONER MATHESON | SYDNEY, 7 JUNE 2022 |
Application for termination of the Kollaras Group Enterprise Agreement 2014-2018.
On 17 May 2022, Kollaras & Co Pty Ltd (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Kollaras Group Enterprise Agreement 2014-2018 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.
The Agreement is a single enterprise agreement. It was approved by Commissioner Roe on 11 July 2014.[1]
The nominal expiry date of the Agreement is 11 July 2018.
Legislation
The relevant provisions of the Act are 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.
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 – s.225
Is the Applicant an employer covered by the Agreement?
The employers covered by the Agreement are Maam (NSW) Pty Ltd, Kollaras & Co Pty Ltd and Neotrade Pty Ltd. The Applicant is Kollaras & Co Pty Ltd. I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.
Has the Agreement passed its nominal expiry date?
Clause 5.2 of the Agreement provides that the nominal expiry date of the Agreement is four years after the Agreement takes effect, being 11 July 2018. Having considered the materials before the Commission and clause 5.2 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.
Consideration – s.226
Section 226(a) – Public interest
S.226(a) of the Act requires the Commission to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards.[2] The notion of public interest is distinct in nature from the interests of the parties.[3] S.226(b) of the Act clearly requires the interests of the persons or bodies covered by an agreement to be taken into account and those interests are considered separately from the public interest, although these interests may nevertheless be similarly affected.
I do not consider that the termination of the Agreement would impact employment levels, inflation and the maintenance of proper industrial standards. I have not identified any interests in relation to the Application that are distinct in nature from the interests of the parties.
In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
Section 226(b) – Appropriateness
On 17 May 2022, the Commission directed that the Applicant:
· serve a copy of the directions, the Form F24B, the Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement and file a statutory declaration confirming compliance; and
· file and serve on each employee and employee organisation covered by the Agreement an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its application to terminate the Agreement.
The Applicant filed a statutory declaration confirming compliance with the above directions.
The Commission’s directions required that any employee or employee organisation covered by the Agreement and who opposes the termination of the Agreement file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement by 2 June 2022. The directions also noted that if any employee or employee organisation covered by the Agreement opposed the application, the matter would be listed for hearing and the absence of opposition to the application would result in the matter being determined on the papers.
There are no employee organisations covered by the Agreement. No employee raised an objection to the Application or filed submissions in opposition to the Application.
It is declared in the Form F24C that there were previously 180 employees covered by the Agreement in various roles including warehouse and administrative roles. However, the business now only employs sales and administrative employees and there are now only seven employees covered by the Agreement.
It is declared in the Form F24C that the seven covered employees were engaged in a consultation process in relation to the proposed termination of the Agreement whereby information was provided to employees and following that process all employees indicated their support to terminate the Agreement. Supporting documentation was provided by the Applicant.
The Applicant declared that all employees currently receive a higher ordinary hourly rate under the Agreement than that prescribed by the relevant award and that the Applicant is committed to maintaining this, with annual increases in line with the consumer price index. The Applicant also submitted that the business has changed radically since the Agreement was approved, changing from a large company engaged in a diverse range activities to a business with only seven employees covered by the Agreement.
Maam (NSW) Pty Ltd and Neotrade Pty Ltd are part of the group of employers covered by the Agreement however both employers consider it appropriate to terminate the Agreement and have not had any employees covered by the Agreement for a number of years.
In all the circumstances, and taking into account the relevant provisions in s.226(b) of the Act, I consider that it is appropriate to terminate the Agreement.
Conclusion
Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.
Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 10 June 2022. An Order to that effect will be issued in conjunction with this Decision.
COMMISSIONER
[1] [[2014] FWCA 664].
[2] Re Kellogg Brown and Root, Bass Strat (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40-41.
[3] Ibid, 40.
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