Reid Stockfeeds Diversified Pty Ltd T/A Reid Stockfeeds Diversified (Pty) Ltd
[2023] FWCA 1844
•29 JUNE 2023
| [2023] FWCA 1844 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Reid Stockfeeds Diversified Pty Ltd T/A Reid Stockfeeds Diversified (Pty) Ltd
(AG2023/1689)
FIVE STAR STOCKFEEDS - CAMPERDOWN & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2019
| Food, beverages and tobacco manufacturing industry | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 29 JUNE 2023 |
Application for termination of the Five Star Stockfeeds - Camperdown & National Union of Workers Enterprise Agreement 2019
On 1 June 2023, Reid Stockfeeds Diversified Pty Ltd (the Applicant) applied to terminate the Five Star Stockfeeds – Camperdown & National Union of Workers Enterprise Agreement 2019 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act).
The Applicant is covered by the Agreement as a result of the purchase and transfer of ownership of Five Star Stockfeeds Pty Ltd in March 2021. The Applicant is the sole employer covered by the Agreement.
The Agreement has passed its nominal expiry date of 30 June 2021.
The Agreement covers employees employed in the milling operations of Five Star Stockfeeds Pty Ltd Camperdown (as it was then known). The Agreement incorporates the Food, Beverage and Tobacco Manufacturing Award 2010. The United Workers’ Union (formerly known as the National Union of Workers) is an employee organisation covered by the Agreement.
The application was supported by a statutory declaration of Mr Mautone, Group Operations Manager, dated 31 May 2023. My chambers raised with the Applicant some inconsistencies in the Form F24C filed on 31 May 2023. Subsequently, the Applicant filed an amended F24C on 28 June 2023 which attests that there are no employees covered or likely to be covered by the Agreement.
Consideration
In relation to s.225 of the Act, I am satisfied that the Agreement has passed its nominal expiry date and that the Applicant is entitled to make the application as an employer covered by the Agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amended s.226 of the Act. The amendments took effect from 7 December 2022 and provide as follows:
“226 Terminating an enterprise agreement after its nominal expiry date
(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”
Section 226(1) of the Act requires that the Commission terminate an enterprise agreement that has passed its nominal expiry date if satisfied that any of the three grounds listed have been met. These relate to the continued operation of the agreement being unfair to employees, the agreement being unlikely to cover any employees, or the continued operation of the agreement posing a significant threat to the viability of the business. However, an additional consideration is whether the termination is appropriate. The Commission must terminate an enterprise agreement under s.226(1) only if satisfied that it is appropriate in all the circumstances to do so.[1]
The Applicant has advised that the Agreement does not cover, and is not likely to cover, any employees. As such, I am satisfied that s.226(1)(b) has been met.
In accordance with s.226(3)(c) I must consider the views of any employee organisations covered by the Agreement. On 7 June 2023, the United Workers’ Union advised that they do not oppose the termination of the Agreement.
On the material before the Commission, I am satisfied that none of the criteria in s.226(4) are relevant to this application.
Considering that there is no opposition to the application and there are no employees covered or likely to be covered by the Agreement, I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.
In accordance with s.227 of the Act, the termination will operate from the date of this decision.
DEPUTY PRESIDENT
[1] Certis Security Australia (WA) Pty Limited [2023] FWCA 630 at [17].
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