Nowshire Pty Ltd - [2010] FWA 2663

[2010] FWA 2663

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Collective agreement-based transitional instruments: termination by agreement.

Nowshire Pty Ltd
(AG2009/22481)

Agricultural industry
COMMISSIONER ASBURY	BRISBANE, 6 APRIL 2010

Application to terminate collective agreement-based transitional instrument.

Background

[1] This is an application under Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) as it applies under item 15 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act) for termination of a collective agreement based transitional instrument. The applicant is Nowshire Pty Ltd (Nowshire). The transitional instrument subject of the application is the Stanbroke Pastoral Company Pty Ltd Certified Agreement 2001 (the Agreement). The application was made on 23 December 2009.

[2] The Agreement subject of these proceedings was made under Division 2 s.170LK of the Workplace Relations Act 1996 (the WR Act) and was certified on 12 December 2001. The Agreement came into force from the beginning of the first pay period commencing on or after 1 January 2002 and remained in force for three years from that date. The parties to the Agreement are the Stanbroke Pastoral Company Pty Ltd (Stanbroke) and its employees.

[3] On 25 January 2010, the matter was mentioned for the purpose of giving the applicant an opportunity to make submissions in relation to the following issues:

Whether Nowshire is a party to the Agreement that is sought to be terminated; and

Whether the requirements for termination of the Agreement had been met.

Submissions and supporting material

[4] On 12 February 2010 an affidavit of Mr Terence Hickey, Human Resource Manager for the Stanbroke Group, was filed in support of the application. Relevantly the affidavit states that:

On 1 January 2005, Stanbroke “transferred the human resources aspect of its business” to Nowshire, and the latter company has carried on the business of providing human resource management services to Stanbroke for a fee;

Nowshire has operated the business of providing human resources to Stanbroke on the basis that it is bound by the Agreement as a successor to part of Stanbroke’s business;

Since 1 January 2005 Stanbroke has not employed any employees who would fall within the coverage of the Agreement.

[5] In relation to obtaining the agreement of employees to the termination of the Agreement, Mr Hickey states that on 8 December 2009 Nowshire provided employees with a letter requesting them to approve the proposed termination of the Agreement by voting. The letter advised employees that they were invited to consider whether they wanted to approve the termination of the Agreement and its replacement with the Modern Pastoral Award with effect from 1 January 2010 or when FWA approved the termination of the Agreement, whichever was later. Employees were also advised that if they did not approve the termination of the Agreement, it would remain as their primary industrial instrument, and were provided with copies of the Agreement and the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nowshire Pty Ltd

Details

AGLC: Nowshire Pty Ltd [2010] FWA 2663
Case: [2010] FWA 2663
Decision Date: 6 APRIL 2010

CaseChat Overview and Summary

Nowshire Pty Ltd applied to the Fair Work Commission for the termination of a collective agreement-based transitional instrument. The instrument in question was entered into by the company and the Construction, Forestry, Maritime, Mining and Energy Union. The dispute involved the interpretation and application of the Fair Work Act 2009 in relation to the conditions under which a transitional instrument could be terminated.

The primary legal issue before the commission was whether the company had met the threshold requirements to seek the termination of the transitional instrument. This involved assessing whether the company could demonstrate that the continuation of the instrument was preventing the making of a new enterprise agreement or was otherwise detrimental to the business. The commission needed to consider the statutory provisions and relevant case law to determine the appropriate course of action.

In its decision, the Fair Work Commission found that the company had not satisfied the criteria necessary to justify the termination of the transitional instrument. The commission considered that the company had not provided sufficient evidence to demonstrate that the continuation of the instrument was preventing the making of a new enterprise agreement or was otherwise detrimental to the business. As a result, the application for termination was dismissed. The commission emphasised the importance of the company's obligation to provide detailed evidence in support of its application, highlighting that the burden of proof lay with the company to show that the continuation of the transitional instrument was not in the best interests of the business.

The Fair Work Commission ordered that the application to terminate the collective agreement-based transitional instrument be dismissed. The commission directed the parties to continue their negotiations in good faith with the aim of reaching a new enterprise agreement. This decision underscored the importance of meeting the statutory requirements for termination and the necessity for the company to provide compelling evidence to support its application.

Orders