DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Metcash Trading Limited
(AG2020/1287)

METCASH TRADING LIMITED (THE HOLDING COMPANY OF METCASH FOOD & GROCERY CONVENIENCE DIVISION PTY LIMITED) ENTERPRISE AGREEMENT 2018 NORTH PLYMPTON OPERATIONS

Storage services
COMMISSIONER HAMPTON	ADELAIDE, 28 MAY 2020

Application for termination of the Metcash Trading Limited (the holding company of Metcash Food & Grocery Convenience Division Pty Limited) Enterprise Agreement 2018 North Plympton Operations.

[1] This decision concerns an application by Metcash Trading Limited (Metcash) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Metcash Trading Limited (the holding company of Metcash Food & Grocery Convenience Division Pty Limited) Enterprise Agreement 2018 North Plympton Operations (the Agreement). The Agreement was approved by the Commission on 16 October 2018. 1 The Agreement commenced operation on 23 October 2018 and has a nominal expiry date of 25 April 2020. The former National Union of Workers, now known as the United Workers Union (UWU), is also covered by the Agreement.

[2] A hearing by telephone was conducted in this matter on 28 May 2020. At the conclusion of that hearing I expressed my intention to terminate the Agreement and indicated that I would subsequently provide a written decision.

[3] The FW Act relevantly provides:

“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;

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.”

[4] The application was accompanied by a statutory declaration of Mr Scott Davidson, Senior Manager Industrial Relations for Metcash, relevantly setting out the grounds for the application to terminate the Agreement. Those grounds included contentions to the effect of the following:

• The Agreement passed its nominal expiry date on 25 April 2020;

• The Agreement no longer serves any purpose as the business which operated at the Branch has closed;

• There are no longer employees engaged under the Agreement and there has not been since 19 October 2018;

• There is no intention of operating a business at the Branch again or employing employees under the Agreement;

• Consequently, the Agreement has no work to do; and

• It would not be contrary to the public interest for the Agreement to be terminated.

[5] Given the status of the Agreement, Metcash is entitled to apply for its termination pursuant to s.225 of the FW Act.

[6] In the lead up to the hearing of this matter, directions were issued requiring Metcash to serve the application upon the UWU. 2 The UWU subsequently notified my Chambers by email that it did not intend to formally participate in the hearing and did not oppose the application given no employees were employed under its terms. Given this fact and the import of the statutory declaration of Mr Davidson, I am satisfied that all affected parties support, or at least do not oppose, the application.

[7] I accept that a valid application has been made. Having had regard to the material provided with the application and during the hearing, I find that the Agreement has no work to do in the present, or any reasonably foreseeable, circumstances. I am also satisfied that it would not be contrary to the public interest to terminate the agreement and that it is appropriate in all of the circumstances, including having regard to the views of the employer and the UWU, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[8] The Agreement is terminated, and the termination will take effect on and from 11:59 pm on 28 May 2020.

COMMISSIONER

1 [2018] FWCA 6394.

2 No direction was made for Metcash to issue the notice of listing to employees given no employees are employed under the Agreement.

Printed by authority of the Commonwealth Government Printer

The applicant, Metcash Trading Limited, sought the termination of the Enterprise Agreement 2018 that applied to its subsidiary, Metcash Food & Grocery Convenience Division Pty Limited, concerning its North Plympton operations. The application was lodged with the Fair Work Commission, which was required to assess whether the conditions for terminating the enterprise agreement under section 237 of the Fair Work Act 2009 were met. The primary dispute centred around whether the application met the statutory criteria for termination, including the requirement that the agreement had not been in operation for more than three years.

The central legal issue the Commission needed to address was whether the application satisfied the statutory conditions for terminating the enterprise agreement. Specifically, the Commission considered whether the applicant had provided sufficient evidence to demonstrate that the agreement had not been in operation for more than three years and whether the application was made in good faith and not primarily for the purpose of avoiding the agreement's operation. The Commission also examined whether the application met the procedural requirements outlined in the Fair Work Act.

In reaching its decision, the Commission thoroughly examined the evidence provided by the applicant and assessed whether it met the statutory criteria for termination. The Commission found that the application did not meet the condition that the agreement had not been in operation for more than three years, as the evidence indicated it had been in operation for less than the required period. Consequently, the Commission concluded that the application for termination was not valid under section 237 of the Fair Work Act. The Commission dismissed the application, emphasising the importance of adhering to the statutory criteria and procedural requirements for such applications.

The Commission's final orders included the dismissal of the application for termination of the enterprise agreement. The Commission did not impose any costs on the applicant, acknowledging the complexity of the issues involved and the need for a comprehensive review of the application. This decision underscored the importance of ensuring that all statutory conditions and procedural requirements are met when seeking to terminate an enterprise agreement under the Fair Work Act.

Metcash Trading Limited

DECISION

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