Noah Bridger

[2018] FWCA 1346

[2018] FWCA 1346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Noah Bridger
(AG2018/324)

MB AUSTRALIA PTY LTD - ENTERPRISE AGREEMENT 2011 - 2012

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	CANBERRA, 6 MARCH 2018

Application for termination of the MB Australia Pty Ltd - Enterprise Agreement 2011 – 2012 – Agreement terminated.

[1] Mr Noah Bridger (the Applicant) made an application under s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the MB Australia Pty Ltd - Enterprise Agreement 2011 – 2012 (the Agreement) 1. The application was received by the Fair Work Commission (the Commission) on 31 January 2018.

[2] The Agreement has a nominal expiry date of 1 September 2012.

[3] The relevant provisions of the Act 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 of the issues

[4] With regard to the requirements of s.225, as mentioned above the Agreement has passed its nominal expiry date. Mr Bridger is an employee covered by the Agreement, I am therefore satisfied that he is entitled to make an application for termination of the Agreement.

[5] I turn now to deal with the considerations set out in s.226 of the Act.

s.226(a) – Public Interest

[6] A Statutory Declaration was filed by Mr Bridger in support of the application. Mr Bridger submitted that it was not contrary to the public interest to terminate the Agreement.

[7] No material was put to the Commission suggesting that it would be contrary to the public interest to terminate the Agreement.

s.226(b)(i) – the views of the employees, each employer, and each employee organisation (if any), covered by the agreement

[8] The Applicant supports termination of the Agreement and submitted that employees would receive a pay increase were the Agreement to be terminated.

[9] On 5 February 2018 the Commission wrote to MB Australia Pty Limited T/A Max Brenner Chocolate by the Bald Man (the Employer) and requested its views on terminating the Agreement. The Employer, advised on 5 February 2018 advised that it supported termination of the Agreement.

[10] On 12 February 2018 the Commission issued Directions instructing the Employer to provide a copy of the Directions to all employees covered by the Agreement by close of business on 19 February 2018. The Directions stated that any employee covered by the Agreement, who wanted to provide their views on the application, could do so by providing a written statement to my chambers. Any written statements were to be provided by close of business on 26 February 2018. No written statements were received by the Commission.

[11] No employee organisation is covered by the Agreement.

[12] In summary, the Applicant and the Employer both support termination of the Agreement.

s.226(b)(ii) – the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them

[13] The Applicant submitted that termination of the Agreement would have a beneficial impact on the terms and conditions of employees covered by the Agreement.

[14] The Employer submitted that if the Agreement was terminated, employees would be covered by the MB Australia Enterprise Agreement 2016 2(the 2016 Agreement)andrequested the termination coincide with pay cycles.

Summary

[15] Having regard to the requirements of s.226 of the Act and based on the material that is before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances. As such, consistent with s.226 of the Act the Commission must terminate the Agreement.

Conclusion

[16] Pursuant to s.226 of the Act, the Agreement is terminated. The termination of the Agreement shall operate from 13 March 2018 so as to enable the Employer to put into place the necessary arrangements to transition the employees to the 2016 Agreement. An Order to that effect will be issued in conjunction with this Decision.

 1   AE890216

 2   AE418256

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<AE890216, PR600917>