National Heavy Vehicle Regulator

[2020] FWCA 6689

[2020] FWCA 6689

FAIR WORK COMMISSION

DECISION

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

National Heavy Vehicle Regulator
(AG2020/3698)

VICROADS EA8

State and Territory government administration
COMMISSIONER BOOTH	BRISBANE, 11 DECEMBER 2020

Application for termination of the VicRoads EA8.

[1] An application has been made under s.225 of the Fair Work Act 2009 (the Act) by the National Heavy Vehicle Regulator (NHVR) to terminate the VICROADS EA8 (the Agreement). The nominal expiry date of the Agreement was 20 December 2019.

[2] Section 226 of the Act provides for when the Fair Work Commission must terminate an enterprise 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.”

[3] The Australian Manufacturing Workers’ Union (AMWU), the Association of Professional Engineers, Scientists and Managers Australia (PESMA), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Australian Workers Union (AWU) and the Community and Public Sector Union (CPSU) (collectively, the Unions) are parties to the Agreement. The Unions were invited to provide any views on the termination of the Agreement by email on 9 December 2020.

[4] No correspondence was received by the Unions.

[5] The Employer provided material to the Commission to demonstrate that the views of the employees were sought.

[6] I have considered the views of the employees, employer and the employee organisation and I have considered the likely effect that the termination will have on each of them.

[7] I note that all former VicRoad employees, except for one employee, transferred to NVHR on 8 December 2019 and are now covered by either the NHVR Administration and Professional Enterprise Agreement 2020-2023 or the NHVR (Operational and On-Road Regulatory Compliance) Enterprise Agreement 2020-2020.

[8] NHVR declared that the position of the one former VicRoads employee is so specialised that it falls outside the classification levels prescribed in Appendix 1 of the NHVR Administration and Professional Enterprise Agreement 2020-2023 and the employee’s salary exceeds the highest increment of the highest classification level in Appendix 1.

[9] In all the circumstances, I consider that it is not contrary to public interest to do so.

[10] I am satisfied that the requirements of s.226 of the Act for the termination of an enterprise agreement after its nominal expiry date have been met.

[11] The termination of the Agreement is approved with effect from 11 December 2020.

COMMISSIONER

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