Paul Stanley Lovell
[2023] FWCA 406
•10 FEBRUARY 2023
| [2023] FWCA 406 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument
Paul Stanley Lovell
(AG2022/5316)
Harris Refrigerated Transport Pty Ltd Employee Collective Agreement
| Road transport industry | |
| COMMISSIONER HUNT | BRISBANE, 10 FEBRUARY 2023 |
Application for termination of the Harris Refrigerated Transport Pty Ltd Employee Collective Agreement
On 16 December 2022, Mr Paul Lovell (the Applicant) made an application under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Harris Refrigerated Transport Pty Ltd Employee Collective Agreement (the Agreement). The Employer is Scott’s Refrigerated Logistics (the Employer). The Agreement has passed its nominal expiry date.
The Applicant is an employee covered by the Agreement. The Employer did not object the application, provided that employees covered by the Agreement were made aware that from the operation of any termination decision their employment will be covered by the relevant modern awards. The Employer suggested that the termination of the Agreement will result in Linehaul Drivers covered by the Agreement becoming covered by the Road Transport (Long Distance Operations) Award 2020.
The application was supported by a Form F24C statutory declaration of the Applicant, which declared, amongst other things, that the termination of the Agreement will result in employees receiving more beneficial terms and conditions of employment under the modern award, including increases to trip rates.
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 applied 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 employees other than the Applicant.
Legislative Provisions
The relevant provision of the Transitional Act is as follows:
“Schedule 3…
16Collective agreement-based transitional instruments: termination by the FWC
(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”
The relevant provisions of the Fair Work Act 2009 (the Act), as of 7 December 2022, 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 Terminating an enterprise agreement after its nominal expiry date
(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.
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.”
Conclusion
As the Agreement has passed its nominal expiry date and the Applicant is an employee covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.225(b) of the Act.
Based on the material contained in the declaration of the Applicant, and the Employer not objecting to the termination of the Agreement on the basis that employees will revert to being covered by a modern award, in consideration of s.226(1), I am satisfied that the continued operation of the Agreement would be unfair to the employees covered by it. The Applicant asserts that he and his colleagues will receive greater remuneration under the modern award than they would under the Agreement.
In consideration of all of the circumstances including those in section 226(3), (4) and (5), I consider that it is appropriate to terminate the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The view of the Employer is that it does not oppose to the termination of the Agreement.
In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.
As per section 227, if an enterprise agreement is terminated under s.226, the termination operates from the day specified in the decision to terminate the Agreement. The Employer has advised that the pay cycle for these employees is from Monday to Sunday, with employees being paid on a Wednesday each week. Accordingly, I consider it appropriate for the termination to take effect from Monday, 13 February 2023 such that the modern award will apply from that day.
The termination will take effect from 13 February 2023.
COMMISSIONER
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