Maralong Holdings Pty Ltd T/A Maralong Milling

[2020] FWCA 1665

[2020] FWCA 1665

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

Maralong Holdings Pty Ltd T/A Maralong Milling
(AG2020/696)

MARALONG MILLING PTY LTD COLLECTIVE AGREEMENT 2006

Food, beverages and tobacco manufacturing industry
COMMISSIONER HUNT	BRISBANE, 27 MARCH 2020

Application for termination of the Maralong Milling Pty Ltd Collective Agreement 2006.

[1] On 13 March 2020, Maralong Holdings Pty Ltd (the Employer) applied under s.225 of the Fair Work Act 2006 (the Act) to terminate the Maralong Milling Pty Ltd Collective Agreement 2006 (the Agreement). The Agreement has passed its nominal expiry date.

[2] On 18 March 2020, I wrote to the Employer advising that the Agreement is a transitional instrument and the correct application is to apply under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). On 23 March 2020, the Employer filed an amended application under Schedule 3, Item 16 of the Transitional Act to terminate the Agreement. Pursuant to s.586(a) of the Act, I allow the correction and amendment of the Employer’s application as filed 18 March 2020.

[3] The application was supported by a statutory declaration of Ms Catherine Elizabeth Brodie, which declared, amongst other things, detailed information about the steps taken by the Employer to provide employees covered by the Agreement with information about the likely effect that the termination of the Agreement, if approved, would have on each of them. The statutory declaration annexed letters provided by the Employer to each of the employees covered by the Agreement.

[4] The letter informed employees that the Agreement provides for two entitlements with conditions greater than the Food, Beverage and Tobacco Manufacturing Award 2010 (the Award). The Agreement provides for overtime worked by shift workers to be paid at 200%, whereas the Award provides for overtime worked by shift workers to be paid at 150% for the first three hours, and double time thereafter. Further, the Agreement provides for a 20 minute paid meal break, whereas the same entitlement under the Award only applies for continuous shift workers.

[5] The Employer’s letter to employees stated that it would, if the Agreement is terminated, and up until 30 June 2020 only, continue to pay to shift workers overtime at the rate of 200%, and would continue to provide a 20 minute paid meal break for shift workers. From 1 July 2020, these undertakings would no longer be met, and the Award conditions would solely apply.

[6] At the bottom of each letter, the relevant employee was asked if he or she consented to the termination of the Agreement. There are nine letters confirming that each employee does consent to the termination of the Agreement. It is noted that in the earlier application, the Employer has nominated that there are 10 employees covered by the Agreement.

[7] The Employer was invited to consider whether it wished to bring its application under s.222 of the Act, that being where the Agreement is terminated by Agreement. The Employer elected not to, despite there being a clear majority of employees who have consented to the termination of the Agreement.

Legislative provisions

[8] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Act 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.

[9] Chapter 2, Part 2-4, Division 7, Subdivision D 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.

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.”

[10] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[11] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. The views of the employees are clear, and at least nine out of ten employees expressly consent to the termination of the Agreement. It is not necessary for employees to consent to the termination of the Agreement under this particular application. I have included in this decision the undertaking of the Employer to employees up until 30 June 2020 at [5].

[12] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[13] The termination will take effect from today, 27 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AC302927  PR717871