Prestige Blending Pty Ltd

[2022] FWCA 3252

[2022] FWCA 3252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Prestige Blending Pty Ltd

(AG2022/3694)

Prestige Blending Enterprise Agreement 2013

Food, beverages and tobacco manufacturing industry
COMMISSIONER HUNT	BRISBANE, 27 SEPTEMBER 2022

Application for termination of the Prestige Blending Enterprise Agreement 2013

1. On 2 September 2022, Prestige Blending Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Prestige Blending Enterprise Agreement 2013 (the Agreement). The Agreement has passed its nominal expiry date of 31 October 2017.

1. The application was supported by a Form F24C statutory declaration of Mr Steve Furlong, Operations Manager, which declared, amongst other things, the Employer’s view that employee rights and entitlements will revert to the Food, Beverage and Tobacco Manufacturing Award 2020 (FBTM Award) or the Clerks Award 2020 (Clerks Award) which contains generally comparable, and in some instances, more beneficial entitlements. Mr Furlong further declared that consultation has occurred with all parties and mutual agreement has been found on reverting to Award coverage. In an email dated 6 September 2022, Mr Furlong advised that there are 38 employees covered by the Agreement.

1. On 5 September 2022, 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. On 6 September 2022, 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 have not received correspondence from any employees covered by the Agreement.   

Termination of an enterprise agreement after its nominal expiry date

1. Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its 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

1. Based on the material contained in the statutory declaration of Mr Furlong, 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.

1. As earlier noted, there are 38 employees covered by the Agreement. None of the employees covered by the Agreement expressed any views opposing the 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.

1. I have taken into consideration that if the Agreement is terminated, the two modern awards described in [2] will apply to employees of the Employer, depending on the work performed by each employee. 

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

1. In accordance with s.226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The termination will take effect from today, 27 September 2022.

COMMISSIONER

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