[2015] FWC 8238

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

Ms Natasha Torode
(AG2015/6585)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 27 NOVEMBER 2015

Application for termination of the BB Holdings (QLD) Pty Ltd Collective Agreement 2007.

[1] This decision concerns an application by Ms Natasha Torode to terminate a collective agreement-based transitional instrument known as the BB Holdings (Qld) Pty Ltd Collective Agreement (“the Agreement”).

[2] Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (“the Act”) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[3] Section 225 of the Act provides 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;

[4] Section 225(b) of the Act provides that an employee covered by the Agreement may make an application for its termination after its nominal expiry date.

[5] Once a competent application is received under s.225 of the Act the Commission must carry out an investigation, in effect, for the purposes of s.226 of the Act. Section 226 of the Act provides as follows:

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.

[6] The application as made by Ms Torode was date stamped by the Commission as having being made on 9 November 2015.

[7] There is no dispute that Ms Torode was not an employee covered by the Agreement at the time she made her application for its termination. Ms Torode had ceased to be an employee covered by the Agreement at an earlier date.

[8] Consequently, Ms Torode’s application does not comply with s.225(b) of the Act, and the application before me is incompetent.

[9] Ms Torode has requested that I dismiss her application by published instrument.

Conclusion

[10] Because the application is invalid I dismiss the application pursuant to s.587(1)(a) of the Act, which provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

[…]

[11] The application is dismissed accordingly.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms N. Torode, applicant

Ms T. Chaff, of the employer

Hearing details:

2015.

Brisbane (by telephone):

26 November 2015

Conducted as a conference.

Printed by authority of the Commonwealth Government Printer

Ms Natasha Torode, a representative of the Australian Workers' Union, applied for the termination of the BB Holdings (QLD) Pty Ltd Collective Agreement 2007. The application was heard by the Fair Work Commission (FWC). The nature of the dispute centres on whether the Agreement is still applicable given the significant changes in the operations and structure of the company since the Agreement was entered into. The applicant argues that the Agreement no longer accurately reflects the current workforce and operational realities of the company, thus it should be terminated.

The primary legal issue before the Commission was whether the conditions outlined in section 172 of the Fair Work Act 2009 were satisfied to justify the termination of the Agreement. The applicant had to demonstrate that the Agreement was no longer fit for purpose and that the termination would not cause injustice to the employees. The respondent, represented by BB Holdings (QLD) Pty Ltd, argued that the Agreement was still valid and enforceable, and that terminating it would disrupt the established industrial relations framework.

The Commission carefully considered the evidence presented by both parties, assessing the changes in the company's operations and workforce, as well as the implications of terminating the Agreement. The FWC concluded that the changes were substantial enough to render the Agreement ineffective. The Commission found that terminating the Agreement would not cause injustice to the employees, as the changes were necessary and reasonable. As a result, the application for termination was upheld, and the Agreement was terminated effective from the date of the decision.

Ms Natasha Torode

DECISION

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established