Mr Talbot Neil

[2021] FWCA 2600

[2021] FWCA 2600

FAIR WORK COMMISSION

DECISION

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

Mr Talbot Neil
(AG2020/3873)

CROSS COUNTRY TOURS PTY LTD ENTERPRISE AGREEMENT 2018 - COACH CAPTAINS

Passenger vehicle transport (non rail) industry
COMMISSIONER HUNT	BRISBANE, 10 MAY 2021

Application for termination of the Cross Country Tours Pty Ltd Enterprise Agreement 2018 - Coach Captains.

[1] On 11 December 2020, Mr Talbot Neil made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Cross Country Tours Pty Ltd Enterprise Agreement 2018 - Coach Captains (the Agreement). The nominal expiry date of the Agreement is 27 June 2020.

[2] Mr Neil was, as of 11 December 2020 an employee covered by the Agreement who therefore had standing to make the application under s.225(b) of the Act. The employer covered by the Agreement is Cross Country Tours Pty Ltd (the Employer). No employee organisations are covered by the Agreement.

[3] The application was accompanied by a statutory declaration of Mr Neil which declared, amongst other things, that the Agreement would no longer pass the Better Off Overall Test (BOOT), and that the Agreement reflects the road transport industry (Road Transport and Distribution Award 2020) when the work being performed at the Employer, being a charter service, would be covered by the Passenger Vehicle Transportation Award 2020.

[4] Following allocation to my chambers, on 11 January 2021 I convened a conference between the parties. Mr Darren Dickson of Bus Coach Drivers Association Inc appeared together with Mr Neil. Mr Anthony Gear appeared for the Employer.

[5] Following the conference this matter was purposefully held in abeyance until such time as the Employer made operational business decisions following cessation of the JobKeeper payment scheme subsidy on 28 March 2021 to which it was in receipt, and was therefore able to advise of its position with respect to the application.

[6] On 15 April 2021, Mr Gear advised he did not oppose termination of the Agreement. He filed a statutory declaration which declared that all employees that were covered by the Agreement had been terminated or resigned, but for one employee, and if the Agreement is terminated that one employee would be covered by the Passenger Vehicle Transportation Award 2020.

[7] I directed the Employer to communicate in writing to the employee covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 29 April 2021, I received confirmation from the Employer that it had complied with the above direction. The employee covered by the Agreement was invited to provide any views relevant to the application. I did not receive any correspondence from the employee to my chambers by 10 May 2021.

Termination of an enterprise agreement after its nominal expiry date

[8] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which are 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.”

Consideration

[9] Based on the material contained in the statutory declarations of Mr Neil and Mr Gear, and in consideration of s.226(a) of the Act, 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.

[10] There is one employee covered by the Agreement. The employee did not express any views opposing termination of the Agreement. The views of the Employer are that it wishes for the Agreement to be terminated and it no longer wishes to be bound by it.

[11] In consideration of the material before me relevant to s.226(b)(i) and (ii) of the Act and having considered the statutory declarations, I consider that it is appropriate to terminate the Agreement.

[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, 10 May 2021.

COMMISSIONER

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