Metcash Trading Limited

[2020] FWCA 222

[2020] FWCA 222

FAIR WORK COMMISSION

DECISION

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

Metcash Trading Limited
(AG2019/5014)

METCASH FOOD & GROCERY FRESH PRODUCE DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2017

Storage services
COMMISSIONER HAMPTON	ADELAIDE, 17 JANUARY 2020

Application for termination of the Metcash Food & Grocery Fresh Produce Distribution Centre Enterprise Agreement 2017.

[1] This decision concerns an application by Metcash Trading Limited (Metcash) pursuant to s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Metcash Food & Grocery Fresh Produce Distribution Centre Enterprise Agreement 2017 (the Agreement). The Agreement was approved by the Commission in November 2017. 1 The Agreement commenced operation on 17 November 2017 and had a nominal expiry date of 2 January 2019. The Shop, Distributive and Allied Employees Association (SDA) is also covered by the Agreement.

[2] A hearing by telephone was conducted in this matter on 17 January 2020. 2 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;

(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.”

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

•  The Agreement has passed its nominal expiry date;

•  The warehouse to which the Agreement applied has ceased operations and closed;

•  No employees are covered by the Agreement and no employee has been engaged under the Agreement since April 2019;

•  Metcash does not intend to operate at the warehouse or employ 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.

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

[6] The Commission issued a notice of listing, which contained directions, on 30 December 2019. This was issued directly to Metcash and the Shop, Distributive and Allied Employees Association (SDA) as a party covered by the Agreement. The directions invited the SDA to express a view about the matter including by raising any concerns directly with the Commission. 3

[7] Prior to the hearing, the SDA notified my Chambers by email that it did not intend to formally participate in the hearing. The SDA also stated it did not oppose the application given no employees were employed under its terms. Given this fact and the statutory declaration of Mr Davidson, I am satisfied that all affected parties support, or at least do not oppose, the application.

[8] I accept that a valid application has been made. Having had regard to the material provided with the application and during the hearing, I am 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 SDA. It is in the interests of the parties, and not contrary to the public interest, that the Agreement no longer operate. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[9] The Agreement is terminated and the termination will take effect on and from 11:59 pm on 17 January 2020.

COMMISSIONER

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<AE426032  PR715942>

 1   [2017] FWCA 5881.

 2   A related matter, AG2019/5004 was heard concurrently with this matter.

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