Lowbrook Pty Limited A/T The Boydell Family Trust T/A Boydell Property Agents

[2014] FWCA 2096

[2014] FWCA 2096

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

Lowbrook Pty Limited A/T The Boydell Family Trust T/A Boydell Property Agents
(AG2014/3977)

BOYDELL PROPERTY AGENTS EMPLOYEE COLLECTIVE AGREEMENT 2008

Real estate industry

COMMISSIONER BULL

SYDNEY, 1 APRIL 2014

Application for termination of the Boydell Property Agents Employee Collective Agreement 2008.

[1] An application has been made by Lowbrook Pty Limited A/T The Boydell Family Trust T/A Boydell Property Agents (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 Boydell Property Agents Employee Collective Agreement 2008 (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 FWA

(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 FWA 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 its nominal expiry date.

[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 FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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] On 18 March 2014, correspondence was sent to the Applicant requesting further correspondence with respect to s.226 of the Act. In particular, the Applicant was requested to address the public interest, the views of the employees and the circumstances of the employees, including the likely effect the termination of this Agreement would have on each of them.

[8] On 23 March 2014, the Applicant sent correspondence with respect to the Commission’s request for further information.

[9] The correspondence was accompanied by a statutory declaration made by Mr Wallace Boydell, Working Director of the Applicant.

[10] Mr Boydell states that there are four employees covered by the Agreement with another part-time employee planed to commence employment with the Applicant on 25 March 2014.

[11] Mr Boydell submits that it was not necessary or efficient to develop a replacement agreement but rather to maintain existing remuneration arrangements with ongoing compliance with the National Employment Standards and relevant modern awards.

[12] Mr Boydell states that the details of the remuneration arrangements for each employee will be registered with the Queensland Property Industry Registry and the remuneration arrangements will be reviewed annually.

[13] In his statutory declaration, Mr Boydell states that on 10 March 2014, he wrote to each employee providing them with a copy of this application along with a letter setting out the employee’s remuneration arrangements and a copy of the Fair Work Information Statement.

[14] A copy of this correspondence that was provided to each employee was provided to the Commission. The letter asked each employee to let the Applicant know if they required any further information or had any questions. Each employee has signed the letter that was provided to them.

[15] I note that there are no employee organisations that are covered by the Agreement.

[16] Taking into consideration the process that was followed by the Applicant in explaining the application and process to the employees and that no objection from the employees has been raised and the views of the Applicant, I am satisfied that the requirements of s.226 of the Act have been met including that termination of the Agreement is not contrary to the public interest.

[17] The application to terminate the Agreement is approved.

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

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