PFD Food Services Pty Ltd

[2015] FWCA 6129

[2015] FWCA 6129

FAIR WORK COMMISSION

DECISION

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

PFD Food Services Pty Ltd
(AG2015/3452)

PFD FOOD SERVICES PTY LTD (D'ORO) & TWU AND NUW ENTERPRISE AGREEMENT 2010

Storage services
COMMISSIONER HAMPTON	ADELAIDE, 4 SEPTEMBER 2015

Application for termination of the PFD Food Services Pty Ltd (D'oro) & TWU and NUW Enterprise Agreement 2010.

[1] This decision concerns an application by PFD Food Services Pty Ltd pursuant to s 225 of the Fair Work Act 2009 (the Act). The application seeks to terminate the PFD Food Services Pty Ltd (D'oro) & TWU and NUW Enterprise Agreement 2010. 1The Agreement is an enterprise agreement made and approved under the Act with a nominal expiry date of 30 April 2012 and applied to the Ferryden Park operations of the applicant employer.

[2] The Act relevantly provides 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.”

[3] This matter was the subject of a hearing on 4 September 2015 at which time I heard from Mr Asmar, National Employee Relations Manager, on behalf of the applicant employer.

[4] Both the Transport Workers’ Union of Australia (TWU) and the National Union of Workers are covered by the Agreement and were advised of the hearing. The TWU indicated that it was not opposed to the application.

[5] The application is being made in the context of organisational changes which have led to the closure of the Ferryden Park site in South Australia. The relevant operations undertaken at the site, and the employees involved, have been moved to the Torrensville site of the applicant employer.

[6] Having regard to the material before the Commission it is evident that the applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act. It is also the case that there are no longer any employees who are presently subject to the Agreement. The relevant employees previously covered by this Agreement are now subject to the recently approved PFD Food Services Pty Ltd (South Australia) Enterprise Agreement 2015 2 which applies at the Torrensville site.3

[7] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[8] The termination took effect on and from 3 September 2015.

COMMISSIONER

 1   AE87795125 May 2010.

 2   [2015] FWCA 5132.

 3   See s.58(2)(d) of the Act.

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<Price code A, AE877951  PR571564>