Pacific Industrial Company (WA) Pty Ltd as Trustee For Steelfab Unit Trust

[2017] FWCA 474

[2017] FWCA 474

FAIR WORK COMMISSION

DECISION

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

Pacific Industrial Company (WA) Pty Ltd as Trustee For Steelfab Unit Trust
(AG2017/112)

PACIFIC INDUSTRIAL COMPANY (WA) PTY LTD TRANSPORT DRIVERS ENTERPRISE AGREEMENT 2011

Road transport industry
DEPUTY PRESIDENT BINET	PERTH, 21 FEBRUARY 2017

Application for termination of the Pacific Industrial Company (WA) Pty Ltd Transport Drivers Enterprise Agreement 2011.

[1] Pacific Industrial Company (WA) Pty Ltd as Trustee For Steelfab Unit Trust (Pacific)applied (Application) for the Pacific Industrial Company (WA) Pty Ltd Transport Drivers Enterprise Agreement 2011 (Agreement) to be terminated pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 16 January 2015.

[3] Pacific is the employer covered by the Agreement.

[4] There are no employee organisations covered by the Agreement.

[5] Section 225 of the FW Act states:

“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.”

[6] Section 226 of the FW Act states:

“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.”

[7] Pacific filed a Statutory Declaration by Kristopher Harold, People and Performance Manager (Harold Statutory Declaration), which submits as follows.

(a) Termination of the Agreement would not be contrary to the public interest as the Agreement expired in January 2015 and a new agreement cannot be negotiated as it has only one remaining employee employed under it (Remaining Employee).

(b) The Remaining Employee is employed pursuant to the rates set out in his contract of employment and, as such, his rates will not be lowered as a result of termination of the Agreement.

(c) The terms and conditions in the Agreement are above the current “market rates” and the business is paying higher than what competitors are able to engage drivers for in other similar locations.

[8] In relation to the effect termination of the Agreement would have on Pacific or any of its employees, the Harold Statutory Declaration submits that termination of the Agreement would not change the current rate being paid to the single Remaining Employee as his rates of pay are incorporated in his contract of employment. Rather, termination of the Agreement will allow Pacific to compete on an equal footing with its competitors in relation to the labour costs of new transport employees.

[9] On 25 January 2017, the Fair Work Commission (FWC) issued directions (Directions) which directed Pacific to provide a copy of the Application, the Harold Statutory Declaration and the Directions to the remaining Employee. The Directions contained an invitation for the Remaining Employee to contact the FWC by close of business, Thursday 9 February 2017 if he wished to be heard in respect of the Application. The Directions advised that, in the absence of any such contact being made, a conclusion about the Application may be made on the written materials filed in accordance with the Directions.

[10] On 1 February 2017, the FWC received a statutory declaration of Kristopher Harold on behalf of Pacific confirming the Remaining Employee had been provided with the materials required by the Directions.

Consideration

[11] In the absence of any evidence to the contrary, I am satisfied that termination of the Agreement is not contrary to the public interest and may positively impact on employment levels.

[12] Pacific supports the termination of the Agreement and the Remaining Employee has expressed no opposition to the termination of the Agreement.

[13] Based on the material that is before me, including the Harold Statutory Declaration, I am satisfied that the termination of the Agreement would not have any adverse effect on Pacific or the Remaining Employee.

[14] Taking into account the above, I consider in the circumstances that it is appropriate to terminate the Agreement.

[15] Accordingly, the Agreementis terminated. The termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

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