Primeline Contracting Pty Ltd T/A Hi-Trans Express

[2021] FWCA 6992

[2021] FWCA 6992

FAIR WORK COMMISSION

DECISION

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

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Primeline Contracting Pty Ltd T/A Hi-Trans Express
(AG2021/8425)

PRIMELINE CONTRACTING COLLECTIVE AGREEMENT

Road transport industry
COMMISSIONER HAMPTON	ADELAIDE, 8 DECEMBER 2021

Application for termination of the Primeline Contracting Collective Agreement.

[1] This decision concerns an application by Primeline Contracting Pty Ltd T/A Hi-Trans Express (the Applicant or Hi-Trans Express), in effect, under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Primeline Contracting Collective Agreement 1(the Collective Agreement). The Collective Agreement was approved under Part 8 of the Workplace Relations Act 1996 (Cth) in 2008 by the then Workplace Authority2. The Collective Agreement had a nominal expiry date 3 years from the date of commencement.

[2] The Collective Agreement presently covers the heavy vehicle employees (Local Drivers and Forklift Operators) employed by Hi-Trans Express in its Greater Brisbane Metropolitan area business.

[3] A hearing by telephone was conducted in this matter on 8 December 2021. At the conclusion of that hearing, I expressed my intention to terminate the Collective Agreement and indicated that I would subsequently provide a written decision.

[4] The Collective Agreement is a collective agreement-based transitional instrument 3 for the purposes of the Fair Work (Transitional Provisional and Consequential Amendment) Act 2009 (the Transitional Act). This means, in effect, that the Collective Agreement remained in force under the terms of the FW Act, subject to certain overriding provisions including the National Employment Standards and the minimum base rates provide by any modern award covering the parties. In this case, the Road Transport and Distribution Award 20204 (Road Transport Award) covers the parties although it does not presently apply to them due to the continued operation of the Collective Agreement.5

[5] Item 16 of Schedule 3 of the Transitional Act provides that an agreement of this kind may be terminated by the Commission under Part 2-4 of the FW Act.

[6] Subdivision D of Division 7 of Part 2-4 of the FW Act provides:

“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.”

[7] The application was accompanied by a statutory declaration of Ms Linda Marrone, General Manager, People Safety and Culture of the Applicant, relevantly setting out the grounds for the application to terminate the Collective Agreement. Those grounds included contentions to the effect of the following:

•  The Collective Agreement is outdated and was approved prior to the introduction of the Fair Work Act 2009 and the now underlying relevant modern award.;

•  The workforce now includes afternoon shift workers which is not a pattern of work reflected within the Collective Agreement, disadvantaging those workers by comparison to the relevant award entitlements;

•  Penalty rates in the Road Transport Award are more favourable; and

•  Hi-Trans Express intended to apply the Road Transport Award in a manner resulting in employees being better off overall.

[8] Given the status of the Collective Agreement, Hi-Trans Express is entitled to apply for its termination pursuant to s.225 of the FW Act.

[9] In the lead up to the hearing of this matter, directions were issued requiring Hi-Trans Express to ensure that any affected employees were aware of this hearing and provide details for any affected employee to make a contribution about the application to terminate the agreement. I note that Hi-Trans Express has confirmed that all employees were provided a copy of the notice of listing and information was available to explain the application.

[10] The Commission did not receive any communication from any employee (or employee representative) covered by the Collective Agreement expressing concerns or otherwise wishing to be heard in relation to the application. Given this fact, and the evidence provided by Ms Marrone, I am satisfied that the employees support, or at least do not oppose, the application.

[11] The statutory environment in which the Collective Agreement now operates is significantly different to that in which it was approved. The continued operation of the Collective Agreement also prevents the full legal application of the Road Transport Award. 6

[12] Although Hi-Trans Express has applied more beneficial arrangements than required by the Collective Agreement, it is appropriate that what is now a very much outdated and largely redundant instrument no longer apply. Employees will not be disadvantaged by the termination of the instrument and the formal conclusion of the Collective Agreement is sought by the applicant employer. In that respect, Hi-Trans Express has undertaken 7 to the Commission and its employees, that the current base rates of pay (above award minimum) will remain, and the award conditions will be applied to these (above award) base rates.

[13] Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the Collective Agreement and that it is appropriate in all of the circumstances, including having regard to the views of the relevant parties, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Collective Agreement.

[14] The Collective Agreement is terminated, and the termination will take effect on and from 11:59 pm on 21 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AC317210  PR736464>

 1 AC317210.

 2   The Workplace Authority was an Australian Government Statutory Agency that was in existence from 1 July 2007 to1 July 2009.

 3   Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

 4   MA000038

 5 s.47 and s.48 of the FW Act.

 6 Item 41 of Schedule 3A of the Transitional Act – the Collective Agreement prevails over the modern award to the extent of any inconsistency – subject to the minimum standards of the FW Act.

 7   Reference in the application and confirmed during the hearing.