Rivalea (Australia) Pty Ltd T/A Rivalea (Australia) Pty Ltd

[2021] FWCA 3372

[2021] FWCA 3372

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Rivalea (Australia) Pty Ltd T/A Rivalea (Australia) Pty Ltd
(AG2021/5337)

ENTERPRISE AGREEMENT RIVALEA (AUSTRALIA) PTY LTD AND THE AUSTRALIAN WORKERS UNION - FARMING OPERATIONS NEW SOUTH WALES 2019

Agricultural industry
COMMISSIONER WILSON	MELBOURNE, 11 JUNE 2021

Application for termination of the Enterprise Agreement Rivalea (Australia) Pty Ltd and The Australian Workers Union - Farming Operations New South Wales 2019.

[1] On 27 May 2021, Rivalea (Australia) Pty Ltd made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate Enterprise Agreement Rivalea (Australia) Pty Ltd and The Australian Workers Union - Farming Operations New South Wales 2019 (the Agreement) after its nominal expiry date.

[2] Section 225 of the Act states:

“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.”

[3] The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date which was 10 November 2020.

[4] Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made:

“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.”

[5] The material before the Commission includes the originating application and an accompanying statutory declaration filed by the employer in support of the application. The statutory declaration provided by the company’s Industrial Relations Manager provides:

“The Agreement covers 115 number of employees at Corowa NSW, 25 at Balpool (near Moulamein NSW) and 21 at Bungowannah NSW.

The Corowa employees have voted to be covered by the new Enterprise Agreement Rivalea (Australia) Pty Ltd and The Australian Workers Union Farming Operations Corowa 2021 (AG2021/4954)

The employees at Balpool and Bungo have elected to move onto staff contracts..”

[6] The agreement covers the Australian Workers’ Union. I wrote to the union and asked if it wished for me to take its views into account. No response was provided by the union.

[7] I am satisfied that each of the requirements of s.226 of the Act have been met. As a result, I must approve the termination of the Agreement.

[8] The Agreement is terminated and, pursuant to s.227 of the Act, the termination will come into effect from 11 June 2021.

COMMISSIONER

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