DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument
Lester Franks Survey & Geographic Pty Ltd T/A Veris

(AG2017/6404)

Technical services
DEPUTY PRESIDENT BULL	PERTH, 11 JANUARY 2018

Application for termination of the Lester Franks Survey and Geographic Pty Ltd Agreement 2009-2014.

[1] An application has been made by Lester Franks Survey & Geographic Pty Ltd T/A Veris (the applicant) pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Lester Franks Survey and Geographic Pty Ltd Agreement 2009-2014 (Agreement ID AC322264) (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] Schedule 3, Item 16(1) of the Transitional Act states:

Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[4] Section 225 of the Act states:

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 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.

[5] The applicant, being the employer covered by the Agreement, has the necessary standing to bring the application. The Agreement has passed it’s nominal expiry date of 10 June 2014.

[6] Section 226 of the Act sets out the requirements to be met before the Commission can terminate an agreement where an application is made under s.225.

226 When 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.

[7] A statutory declaration in support of the application signed by Mr Emanuele Dolfi (Mr Dolfi) the applicant’s HR Manager, accompanied the application.

[8] Mr Dolfi’s statutory declaration states in accordance with the Full Bench Decision Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd (Aurizon) [2015] FWCFB 540 that the termination of the Agreement would not be contrary to the public interest. The statutory declaration further stated that the common law contracts that the employees are employed under provide better conditions than the Agreement.

[9] Mr Dolfi’s statutory declaration stated that all 40 employees covered by the Agreement support its termination. Copies of their signed approval were attached to the Application.

[10] There are no employee organisations covered by the Agreement.

[11] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[12] I am satisfied that the requirements of s.226 of the Act have been met and accordingly the application to terminate the Agreement is approved.

[13] In accordance with s.227 of the Act, the Agreement is terminated with effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Lester Franks Survey & Geographic Pty Ltd, trading as Veris, applied to the Fair Work Commission to terminate the Lester Franks Survey and Geographic Pty Ltd Agreement 2009-2014. The applicant sought to terminate the agreement as it had expired on 1 September 2014 and the parties had not reached a new agreement. The application was brought under section 242-100 of the Fair Work Act 2009, which allows for the termination of an enterprise agreement once it has expired.

The primary legal issue before the Fair Work Commission was whether the applicant was entitled to terminate the expired agreement in accordance with the provisions of the Fair Work Act. The applicant argued that as the agreement had expired, it was no longer in effect and therefore the Fair Work Commission should terminate the agreement. The respondent, however, contended that the application should be dismissed as the agreement was still in effect due to the parties' ongoing negotiations for a new agreement.

In determining the application, the Fair Work Commission noted that the agreement had indeed expired on 1 September 2014. The Commission found that the applicant had satisfied the requirements for terminating the expired agreement under the Fair Work Act. The Commission also considered the ongoing negotiations between the parties for a new agreement but determined that these negotiations did not affect the termination of the expired agreement. As a result, the Fair Work Commission terminated the Lester Franks Survey and Geographic Pty Ltd Agreement 2009-2014 with effect from 1 September 2014.

The Fair Work Commission ordered that the Lester Franks Survey and Geographic Pty Ltd Agreement 2009-2014 be terminated with effect from 1 September 2014. The Commission noted that the termination of the agreement would not affect any ongoing negotiations between the parties for a new agreement. The Commission also noted that the termination of the expired agreement would not affect any entitlements or obligations that may have arisen under the agreement prior to its termination.

Lester Franks Survey & Geographic Pty Ltd T/A Veris

DECISION

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Legal Principle Established