Quaid Real Estate Pty Ltd T/A Quaid Auctioneers

[2020] FWCA 6949

[2020] FWCA 6949

FAIR WORK COMMISSION

DECISION

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

Quaid Real Estate Pty Ltd T/A Quaid Auctioneers
(AG2020/3567)

QUAID REAL ESTATE AND COLLIERS INTERNATIONAL (CAIRNS) ENTERPRISE AGREEMENT 2013

Real estate industry
DEPUTY PRESIDENT LAKE	BRISBANE, 21 DECEMBER 2020

Application for termination of the Quaid Real Estate and Colliers International (Cairns) Enterprise Agreement 2013.

[1] An application has been made by Quaid Real Estate Pty Ltd T/A Quaid Auctioneers (the Applicant) seeking termination of the Quaid Real Estate and Colliers International (Cairns) Enterprise Agreement 2013 (the Agreement). The Agreement covers the Applicant and Colliers International (Cairns) Pty Ltd (the Employer).

[1] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 15 November 2016.

[2] Sections 225 and 226 of the Act provide:

“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.”

[1] Ms Stacey Quaid, Director of the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Ms Quaid stated that the agreement is becoming more challenging to confidently ensure correct application of award changes being that the Agreement is past its nominal expiry date. Ms Quaid said that the Applicant employs 15 employees under the agreement in total who had been consulted with in relation to the application and had provided their support for termination of the Agreement, as evidenced by a secret ballot conducted on 23 November 2020.

[2] Ms Quaid said that termination of the Agreement is not contrary to public interest as it would enable all employees’ engagement to be aligned with the applicable modern awards, being the Real Estate Industry Award 2020 and the Clerks - Private Sector Award 2020.

[3] Ms Quaid stated termination of the Agreement would not result in loss of income for employees, and in some cases would increase allowances applicable to staff that had a variation of application prescribed in the Agreement. Ms Quaid said termination of the Agreement would remove the debit/credit system utilised for property sales staff which does not impact on the amounts paid to employees, and would ensure employees’ wages are aligned with the current rates, benefits and conditions of the modern awards.

[1] On 7 December 2020, I issued Directions for filing of further material with respect to the application. The Applicant filed a further statutory declaration from Ms Quaid in relation to s.225 and s.226 of the Act on 14 December 2020.

[2] In her statutory declaration, Ms Quaid confirmed that the Applicant consulted with staff and provided correspondence setting out the Applicant’s intention to file the application and the effect it would have on staff. The correspondence, dated 17 November 2020, set out next steps for the application and provided links to the Agreement and applicable awards and encouraged employees to review both documents. The correspondence informed staff that they would be invited to vote on the proposal to terminate the Agreement on 23 November 2020, and explained that the vote was not a requirement but was being undertaken as an additional step to ensure employees were involved in the process. The correspondence stated that employees could ask any questions that had not already been answered at the meeting.

[3] Ms Quaid provided as attachments copies of the correspondence to staff and the results of the secret ballot of 23 November 2020. The ballot results indicated ten employees voted and all ten voted to approve termination of the Agreement. Ms Quaid provided a comparison of employee earnings and entitlements as an attachment to her statutory declaration.

[4] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the agreement on the basis that the material satisfies the legislative requirements that the termination of the Agreement is appropriate. I am satisfied it is not contrary to the public interest to terminate the Agreement. The application is therefore granted and the Agreement is terminated. Termination of the Agreement will take effect from 21 December 2020.

[5] I Order accordingly.

DEPUTY PRESIDENT

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