Ms Pamela Foster

[2016] FWCA 3509

[2016] FWCA 3509

FAIR WORK COMMISSION

DECISION

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

Ms Pamela Foster
(AG2016/2744)

BLUE MOON PACKING ENTERPRISE AGREEMENT 2009

Agricultural industry
DEPUTY PRESIDENT BINET	PERTH, 2 JUNE 2016

Application for termination of the Blue Moon Packing Enterprise Agreement 2009.

[1] This decision concerns an application (Application) made by Ms Pamela Foster (Ms Foster), an employee of Blue Moon Packing Pty Ltd (Blue Moon), for the termination of the Blue Moon Packing Enterprise Agreement 2009 (Agreement).

[2] This Application is made under section 225 of the Fair Work Act 2009 (FW Act).

[3] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 9 December 2014.

[4] If the Agreement is terminated the Horticulture Award 2010 will apply.

[5] There are no employee organisations party to the Agreement.

[6] Section 225 of the FW Act allows an employee covered by the Agreement to apply to the Fair Work Commission (FWC) for the termination of an agreement that has passed its nominal expiry date.

[7] Section 226 of the FW Act, set out below, details the considerations for the FWC when dealing with such an application.

“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.”

[8] Ms Foster, who is employed by Blue Moon as a Sorter, has provided a statutory declaration in support of the Application. In her statutory declaration she explains that she has made the Application because the Agreement has passed its nominal expiry date, she is the only remaining employee present at the time the Agreement was approved and she is now working under the terms and conditions set out in the Horticulture Award 2010.

[9] On 3 May 2016 Directions were issued to Ms Foster and Blue Moon in the following terms (Directions). Both Ms Foster and Blue Moon were directed to provide an outline of submissions and evidence which addresses the requirements of section 226 of the FW Act. Blue Moon was also directed to provide a copy of the Application, the parties’ materials and a copy of the Directions to all employees whose employed was regulated by the Agreement. The Directions contained an invitation for any employee who wished to be heard with respect to the Application to contact the FWC by close of business on Tuesday 24 May 2016.

[10] In compliance with the Directions, on 13 May 2016 Blue Moon provided the following information to the FWC.

● There are currently 21 employees covered by the Agreement.

● Those employees are currently working under the terms and conditions of employment set out in the Horticulture Award 2010 therefore the termination of the Agreement will have no effect on the employees.

● Termination of the Agreement is not contrary to the public interest as protections for employees are afforded through the applicable award.

● Blue Moon does not oppose the Application.

[11] On 17 May 2016 Ms Foster advised the FWC by letter that she and the other employees were already working under the terms and conditions of the Horticulture Award 2010 and therefore the termination of the Agreement will have no effect on them and was not contrary to the public interest.

[12] On 31 May 2016 Mr Sam Russo confirmed in a statutory declaration that a copy of the Application, Directions and both parties’ materials had been provided to all employees currently covered by the Agreement (Russo Statutory Declaration).

[13] No applications to be heard were received by any employees of Blue Moon on or before close of business on Tuesday 24 May 2016.

[14] In the absence of any evidence to the contrary I am satisfied that termination of the Agreement is not contrary to the public interest.

[15] Based on the material that is before me, including the Russo Statutory Declaration, I am satisfied, in the absence of any application to be heard, that no employees oppose the Application.

[16] Taking into account the views of both Ms Foster and Blue Moon that the termination of the Agreement will have no effect on the employees covered by the Agreement or Blue Moon I consider it appropriate to terminate the Agreement.

[17] Accordingly, the Agreement is terminated. The termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

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