O’Brien Glass Industries Limited
[2022] FWCA 3720
•25 OCTOBER 2022
| [2022] FWCA 3720 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
O’Brien Glass Industries Limited
(AG2022/4251)
O’Brien® Customer Solutions Enterprise Agreement 2019-2022
| Clerical industry | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 25 OCTOBER 2022 |
Application for termination of the O’Brien® Customer Solutions Enterprise Agreement 2019-2022
An application has been made by O’Brien Glass Industries Limited (Applicant) for the termination of the O’Brien® Customer Solutions Enterprise Agreement 2019-2022 (Agreement).
The application is made under s.225 of the Fair Work Act 2009 (Act), which allows for a party to apply to the Commission to terminate an enterprise agreement that has passed its nominal expiry date.
Relevantly, s.226 of the Act reads:
“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”.
The Applicant employer has provided, in support of its termination application, a statutory declaration and Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date from Ms Akile Numan, Employment Relations Specialist. Following a Mention/Directions listing of the matter on 17 October 2022, the Applicant provided additional material including a further statutory declaration from Ms Numan. The statutory declarations included an explanation of the steps taken by the Applicant to consult with employees regarding the potential termination of the Agreement. Ms Numan outlined that employees currently covered by the Agreement would be covered by the Clerks – Private Sector Award 2020 (Award). It is submitted that this would leave no employee worse off given the determined similarity between the terms of the Agreement and the Award. Additionally, Ms Numan stated that the Applicant would preserve the higher wage rates in place under the Agreement and would also provide a discretionary 3.5% pay rise to each Agreement covered employee and an additional 3.5% discretionary back payment to cover the period between the expiration of the Agreement and the transition date.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) consent to the termination of the Agreement.
Consideration
I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account the views of the Applicant, its relevant employees, and the AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement. Accordingly, the Agreement is terminated pursuant to s.227 of the Act. The termination takes effect on and from the date of this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE506115 PR747166>
0
0