Rivapak Pty Ltd

[2020] FWCA 3484

[2020] FWCA 3484

FAIR WORK COMMISSION

DECISION

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

Rivapak Pty Ltd
(AG2020/1657)

RIVAPAK ENTERPRISE AGREEMENT 2008

Agricultural industry
COMMISSIONER PLATT	ADELAIDE, 2 JULY 2020

Application for termination of the Rivapak Enterprise Agreement 2008.

Summary

[1] On 12 June 2020, The Australian Industry Group filed an application on behalf of Rivapak Pty Ltd (Rivapak) pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act) to terminate the Rivapak Enterprise Agreement 2008 (the Agreement).

[2] On 17 June 2020, I issued Directions requiring Rivapak to produce a table identifying the disadvantages to employees, should the Agreement be terminated, and to provide that table, the form F28 Application, the Statutory Declaration of Ms Michelle Mundie and the Directions to all employees and employee organisations covered by the Agreement.

[3] On the same day, I received an email from the Australian Industry Group advising that the Directions had been complied with and that there would be no disadvantages to the employees if the Agreement was terminated. There would only be benefits as set out in the table previously annexed to the Statutory Declaration.

[4] Ms Mundie’s Statutory declaration is summarised as follows:

•  The Agreement has been expired since 31 December 2011.

•  At the time the Agreement was implemented, there were only benefits to workers not otherwise provided for in the pre-reform Vegetable Processing (South Australia) Award.

•  Since then, the Fair Work Act 2009 (the Act) and the modern Horticulture Award 2010 (the Award) have been introduced which would now otherwise apply to the employees covered by the Agreement.

•  The Award has more generous benefits than the Agreement.

•  Many of the benefits are already provided to the employees which means the Agreement is only of marginal relevance at the workplace level.

•  The employees have been consulted with at a face to face meeting and through written communications.

•  Terminating the Agreement would not be contrary to the public interest.

•  The Agreement is creating an unnecessary administrative burden on the Applicant.

•  Employees will not suffer any detriment.

[5] No party opposed the terminating of the Agreement.

Legislation

[6] Item 16 of Schedule 3 of the Transitional Act provides as follows:

“16 Collective agreement-based transitional instruments: termination by agreement

16(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) 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.”

[7] The provisions of Subdivision D of Division 7 of Part 2-4 of the Act are as follows:

“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 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 FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.”

Conclusion

[8] In having regard to s.226 of the Act and based on the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate to terminate the Agreement taking into account all the circumstances.

[9] In accordance with s.227 of the Act, the termination will take effect from 2 July 2020.

COMMISSIONER

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