RPQ Services Pty Ltd T/A Rock n Road Bitumen Pty Ltd

[2018] FWCA 7576

[2018] FWCA 7576

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

RPQ Services Pty Ltd T/A Rock n Road Bitumen Pty Ltd

(AG2018/6061)

Asphalt industry
COMMISSIONER SPENCER	BRISBANE, 13 DECEMBER 2018

Application for termination of the Rock n Road Bitumen Pty Ltd Enterprise Agreement 2010.

1. An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by RPQ Services Pty Ltd T/A Rock n Road Bitumen Pty Ltd (the Applicant) to terminate the Rock n Road Bitumen Pty Ltd Enterprise Agreement 2010 (the Rock n Road Agreement).

1. The Rock n Road Agreement is an enterprise agreement that has passed its nominal expiry date.

1. Further, ss.225 and 226 of the FW Act relevantly provide:

“225Application 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. There are no employee organisations representing the employees of the Applicant. The Applicant was represented by Mr Greg Power of Drayton’s Workplace Consulting.

1. Mr Dave Symington, Manager of the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Rock n Road Agreement. Mr Symington stated in his Statutory Declaration that the Applicant, when trading as RPQ Services Pty Ltd, purchased Rock n Road Bitumen Pty Ltd (Rock n Road). The Applicant seeks termination of the Agreement to enable them to employ the former employees of Rock n Rock pursuant to the RPQ Services Pty Ltd Enterprise Agreement 2016 (the RPQ Agreement). Mr Symington stated in his Statutory Declaration that the wages and conditions under the RPQ Agreement are superior to the Rock n Road Agreement. Mr Symington also stated that the employees covered by the Rock n Road Agreement were also made aware of the differences between the two agreements, and the impact of the termination of the Rock n Road Agreement on their employment, prior to the Applicant seeking their views on the proposed termination. Mr Symington further attested in his Statutory Declaration that, by majority vote, the employees of Rock n Road covered by the Rock n Road Agreement support the application to terminate the Rock n Road Agreement.

1. Mr Symington further stated in his Statutory Declaration that, to remove any uncertainty, the Applicant has provided written assurances to the employees covered by the Rock n Road Agreement that their current wages and entitlements will be maintained or improved under the terms of their employment contract with the Applicant, if the Rock n Road Agreement were to be terminated.

1. Directions were issued on 21 November 2018 requiring that the Applicant provide further information addressing s.226 of the Act. On 12 December 2018, the Applicant’s representative, Mr Power, filed submissions confirming that:

·   The Agreement’s nominal expiry date has passed;

·   Termination of the Agreement is not contrary to the public interest as it would allow for more favourable rates of pay and conditions to apply to the employees presently covered by the Rock n Road Agreement;

·   No financial detriment will be suffered by the employees covered by the Agreement. Mr Power submitted a comparative table illustrating that the employees’ rates of pay and entitlements will either be maintained or improved under the RPQ Agreement;

·   The views of the employees have been sought and they have agreed, by majority vote, with the proposed termination of the Rock n Road Agreement. Mr Porter submitted a petition signed by all 27 employees covered by the Rock n Road Agreement, which evidences that a majority of the employees support the termination of the Rock n Road Agreement.

1. Taking into account the matters in s.226 of the Act, and in accordance with the above submissions, on the material it would be appropriate to terminate the Agreement. The termination will take effect from 20 December 2018.

1. An Order [PR703137] to that effect will issue together with this Decision.

COMMISSIONER

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