Oji Foodservice Packaging Solutions (Aus) Pty Ltd

[2021] FWCA 6639

[2021] FWCA 6639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Oji Foodservice Packaging Solutions (Aus) Pty Ltd
(AG2021/7985)

OJI FOODSERVICE PACKAGING SOLUTIONS (AUS) PTY LTD EMPLOYEE ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 11 NOVEMBER 2021

Application for termination of the Oji Foodservice Packaging Solutions (Aus) Pty Ltd Employee Enterprise Agreement 2018

[1] On 21 October 2021, Oji Foodservice Packaging Solutions (Aus) Pty Ltd (the Employer) applied under s.225 of the Fair Work Act 2009 (the Act) to terminate the Oji Foodservice Packaging Solutions (Aus) Pty Ltd Employee Enterprise Agreement 2018 (the Agreement). The Agreement has passed its nominal expiry date, being 28 May 2021.

[2] No employee organisations (unions) are covered by the Agreement.

[3] The application was supported by a statutory declaration from Ms Nicola Washbourn, National HR Manager Packaging Australia, which declared, amongst other things, that there are four employees covered by the Agreement. If the Agreement is terminated, the employees will then be covered by Storage Services and Wholesale Award 2020 as a result of the Employer’s change in operations.

[4] The Employer filed supplementary information of ‘Acknowledgement of Consultation with Oji FoodService Packaging Pty Ltd’ from each of the four employees confirming that they were consulted on the changes if the Agreement was terminated, that they support the termination of the Agreement and are not of the view that they will be disadvantaged should the Agreement be terminated.

[5] On 2 November 2021, I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. I received confirmation from the Employer that it had complied with the above direction. The employees covered by the Agreement were invited to provide any views relevant to the application. I did not receive any correspondence from any of the employees to my chambers by 10 November 2021.

Termination of an enterprise agreement after its nominal expiry date

[6] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after is nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which 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

[7] Based on the material contained in the statutory declaration of Ms Washbourn, and in consideration of s.226(a) of the Act, I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] There are four employees covered by the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

[9] In consideration of the material before me relevant to s.226(b)(i) and (ii) of the Act, it is clear that if the Agreement is terminated, the employees presently covered by the Agreement will receive greater benefits under the Award than if they were to remain covered by the Agreement, including, but not limited to, flexibility in remuneration arrangements, overtime entitlements and spread of ordinary hours.

[10] Having taken into account the circumstances of the employees and the likely effect that the termination will have on the employees, together with Employer’s desire to terminate the Agreement, I consider that it is appropriate to terminate the Agreement.

[11] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[12] The termination will take effect from today, 11 November 2021.

COMMISSIONER

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