Preston Motors (Holdings) Proprietary Limited T/A PM Group

[2019] FWCA 5241

[2019] FWCA 5241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Preston Motors (Holdings) Proprietary Limited T/A PM Group
(AG2019/2531)

Vehicle industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 26 JULY 2019

Application for termination of the Preston Motors (Parts Sales) Pty Ltd Dandenong Branch Enterprise Agreement 2015-2018.

[1] On 15 July 2019, Preston Motors (Holdings) Proprietary Limited T/A Preston Motors (Parts Sales) Pty Ltd (Preston Motors) filed an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Preston Motors (Parts Sales) Pty Ltd Dandenong Branch Enterprise Agreement 2015-2018 (the Agreement). The nominal expiry date of the Agreement was 26 August 2018.

[2] Upon review of the material filed in support of the application pursuant to s.222 of the Act by Preston Motors, I formed the view that it had made an incorrect application for termination so I held a Mention by telephone on 24 July 2019 (Mention). Mr Vuong Tran, HR Business Partner for Preston Motors, attended.

[3] At the Mention, I confirmed with Mr Tran that there had been no vote by employees of Preston Motors to terminate the Agreement. I advised Mr Tran that it was therefore not possible for Preston Motors to make the application pursuant to s.222 of the Act. Mr Tran confirmed Preston Motors still sought to terminate the Agreement. It became apparent that what had been intended was an application pursuant to s.225 of the Act.

[4] An employer may apply under s.225(a) of the Act to the Commission for the termination of an Agreement that has passed its expiry date. Preston Motors is the employer covered by the Agreement and so I was satisfied it has standing to bring an application under s.225(a) of the Act. I therefore waived compliance with the Fair Work Commission Rules 2013 and accepted an application pursuant to s.225 of the Act from Preston Motors (the Application) during the Mention.

[5] The Act then relevantly provides as follows:

“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.”

[6] A review of the Agreement and discussion with Mr Tran during the Mention established that the Agreement covers all persons employed as a Storeperson (picking, packing, binning, sorting; with or without a forklift licence) working in the warehouse and/or Despatch Office at the premises of Preston Motors at 34-52 Discovery Road, Dandenong South in Victoria (or any premises to which that business is moved). Mr Tran advised that Preston Motors has closed this premises and operation, effective as at close of business on 30 June 2019. He said there are no longer any employees performing work covered by the Agreement, the Dandenong premises has been vacated by Preston Motors and he understands its owner is currently seeking a new tenant.

[7] Mr Tran said prior to this closure, there had been eleven employees performing work covered by the Agreement but of these, ten had their employment terminated due to redundancy. The remaining (eleventh) employee had ceased work at the Dandenong premises, been paid redundancy entitlements and has been re-engaged at another Preston Motors operation in Campbellfield.

[8] In essence, the position of Preston Motors, conveyed through Mr Tran at the Mention, was that I can be satisfied the termination of the Agreement would not be contrary to the public interest 1 because:

•  There are no longer any employees covered by the Agreement, therefore no employees will be disadvantaged by the termination of the Agreement; and

•  There is therefore no detrimental effect on the public by the termination of the Agreement.

[9] As to the considerations in s.226(b) of the Act:

a) it is clear that Preston Motors, the employer covered by the Agreement, supports the termination of the Agreement and having ceased the operations covered by it, the termination of the Agreement will have no effect on it;

b) There are no employee organisations covered by the Agreement; and

c) There would no longer appear to be any employees covered by the Agreement.

[10] I nonetheless requested that Mr Tran provide me with particulars regarding the termination of the employment of the ten employees due to redundancy and the arrangements that saw the eleventh employee cease work at Dandenong and commence at Campbellfield.

[11] Mr Tran subsequently submitted material that outlines the employment of each of the ten employees had terminated by or on 28 June 2019. As for the eleventh employee, the material outlines his employment at the Dandenong South premises ceased on 28 June 2019 and he has been re-employed at the Campbellfield Distribution centre of Preston Motors from 1 July 2019 at a more senior level.

[12] This material satisfies me that there are no longer any employees covered by the Agreement and as such, there would be no effect on any employee if the Agreement was terminated.

Conclusion

[13] In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate to do so, taking into account all the circumstances.

[14] In accordance with s.227 of the Act, the termination will take effect from 26 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE415375  PR710771 >

 1   Section 226(a) of the Act.