Primaries of WA Pty Ltd T/A Primaries of WA

[2017] FWCA 600

[2017] FWCA 600

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Primaries of WA Pty Ltd T/A Primaries of WA
(AG2017/187)

THE PRIMARIES OF WA PTY. LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Agricultural industry
DEPUTY PRESIDENT BINET	PERTH, 14 MARCH 2017

Application for termination of The Primaries of WA Pty. Ltd Employee Collective Agreement 2009 – Agreement terminated.

[1] Primaries of WA Pty Ltd T/A Primaries of WA (Primaries of WA)has made an application (Application) to the Fair Work Commission (FWC) to terminate The Primaries of WA Pty. Ltd Employee Collective Agreement 2009 (Agreement).

[2] The Agreement has a nominal expiry date in 2014 in accordance with clause 2.1 of the Agreement which states that, “This agreement will operate from 7 days after the date it is approved by the Workplace Authority for a nominal term of five (5) years.” No specific expiry date was provided in the Agreement and Primaries of WA have no original copy of the Agreement approval date.

[3] Primaries of WA is the employer covered by the Agreement.

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

[5] For the purposes of Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 15 of the Transitional Act, Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (FW Act) 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. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.223 of the FW Act.

[6] Section 223 of the FW Act states:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[7] Primaries of WA filed a Statutory Declaration by Ms Carly Brown, National HR Manager (Brown Statutory Declaration), which outlines the steps taken by Primaries of WA to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination, as well as the action taken to notify all relevant employees of the date, place and method of voting in respect of the termination of the Agreement. The Brown Statutory Declaration declares that a total of 44 of the 62 employees covered by the Agreement cast a valid vote on the Agreement and all 44 employees voted in favour of terminating the Agreement.

[8] On 10 February 2017, the FWC issued directions in respect of the Application (Directions) which directed Primaries of WA to provide a copy of the Application, the Brown Statutory Declaration and the Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee who wished to be heard with respect to the Application to contact the FWC by close of business on Friday 24 February 2017 with advice to that effect. 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.

[9] On 16 February 2017, the FWC received a statutory declaration of Ms Elizabeth Hardaker, Executive General Manager – People and Culture, on behalf of Primaries WA confirming the employees had been provided with the materials required by the Directions.

Consideration

[10] Based on the material that is before me, and in the absence of any evidence to the contrary, I am satisfied as to each of the matters contained in s.223 of the FW Act.

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

[12] The termination will come into effect on and from the date of this decision.

DEPUTY PRESIDENT

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