Roland Braun

[2022] FWCA 3678

[2022] FWCA 3678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Roland Braun

(AG2022/3584)

Australian Services Union / Qantas Information Technology Limited (Managers and Technical Consultants) Enterprise Agreement 8

Airline operations
COMMISSIONER CIRKOVIC	MELBOURNE, 21 OCTOBER 2022

Application for termination of the Australian Services Union / Qantas Information Technology Limited (Managers and Technical Consultants) Enterprise Agreement 8

1. Mr Roland Braun (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Australian Services Union / Qantas Information Technology Limited (Managers and Technical Consultants) Enterprise Agreement 8 (the Agreement). The Agreement has passed its nominal expiry date of 30 June 2013 and the Applicant is an employee covered by the Agreement. Qantas Information Technology Limited (the Employer) and the Australian Services Union (ASU) are also covered by the Agreement.

1. Section 225 of the Act provides 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 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.”

1. Section 226 of the Act provides as follows:

“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. The Applicant filed a Form F24C declaration dated 29 August 2022 declared by himself, which stated that to his belief, he was the only remaining employee still covered by the Agreement.

1. On 5 September 2022, the Commission served a copy of the Form F24B application and the form F24C statutory declaration made by the Applicant on the Employer and the ASU.

1. On 3 October 2022, my Chambers issued Directions to the Employer to serve a copy of the F24B Application, F24C Statutory Declaration, any other material provided to the Commission, and the Directions, on any employee covered by the Agreement. The Employer, the ASU, and any affected employees who wished to do so, were directed to send, by 5:00PM on 17 October 2022, any material and witness statements upon which they relied addressing:

• Material which addresses whether it is or is not contrary to the public interest for the Commission to terminate the Agreement (s.226(a) of the Act);

• Material and witness statements regarding the views of the Employer, the ASU, and any employee (as applicable) regarding the application to terminate the Agreement (s.226(b)(i) of the Act); and

• Material and witness statements which describe the circumstances of the Employer and any employee (as applicable), including the likely effect that the termination of the Agreement would have on them (s.226(b)(ii) of the Act).

1. The Employer submitted a witness statement of Ms Amy Youlden, Senior Industrial Relations Manager, which relevantly stated:

• There is one employee currently covered by the Agreement, being the Applicant, Roland Braun.

• The Employer did not oppose the application to terminate the Agreement.

• There would be no adverse impact to the Employer if the Agreement was terminated.

1. The ASU submitted that:

• The Applicant is not a member of the ASU.

• The Applicant is the only employee covered by the Agreement.

• The ASU did not oppose the termination of the Agreement.

• The ASU reserved its right to make no submission regarding the public interest test.

• If the Agreement was terminated, the Applicant’s employment is likely to not be covered by any Award.

1. The employees did not provide any submissions in relation to the termination.

1. The Form F24C declaration by the Applicant indicated that the Agreement was “very outdated and is not current,” and that he had “not received any pay increase after 2012 including CPI.”

1. Based on the material contained in the declaration of the Applicant, the witness statement of Ms Youlden and the submissions of the ASU, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

1. The termination is effective from today.

COMMISSIONER

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