Schweppes Australia Pty Ltd

[2014] FWCA 1354

[2014] FWCA 1354

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

Schweppes Australia Pty Ltd
(AG2013/10544)

CADBURY SCHWEPPES TULLAMARINE MAINTENANCE AND OAKLEIGH SOUTH SERVICE EMPLOYEES AGREEMENT 2006

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 24 FEBRUARY 2014

Application for termination of the Cadbury Schweppes Tullamarine Maintenance and Oakleigh South Service Employees Collective Agreement 2006.

[1] This matter involves an application made by Schweppes Australia Pty Ltd (the Applicant) for termination of the Cadbury Schweppes Tullamarine Maintenance and Oakleigh South Service Employees Agreement 2006 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the FW Act) and Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] The agreement is a collective agreement-based transitional instrument and has a nominal expiry date of 31 March 2009.

[3] Item 16 of Schedule 3 to the Transitional Act provides Subdivision D of Division 7 of Part 2-4 of the FW Act applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date.

[4] Subdivision D of Division 7 of Part 2-4 of the Act, at sections 225 - 227, states:

“Subdivision D—Termination of enterprise agreements after nominal expiry date

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.

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.

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.”

[5] With regard to the requirements of s.225, the Agreement has passed its nominal expiry date and I am therefore satisfied that the employer covered by the Agreement is entitled to make application to the Fair Work Commission to terminate the agreement.

[6] The employer’s application was lodged on 19 December 2013. On 17 January 2014, I wrote to the Applicant seeking further information with regard to the requirements of s.226 of the FW Act. I asked that this information be provided to me in the form of a statutory declaration.

[7] On 24 January 2014, I received a statutory declaration from the Applicant which stated that no employees had been engaged under the Agreement since 26 November 2009. Further the Applicant had outsourced the maintenance function at Tullamarine to a third party provider and has no intention of directly employing maintenance employees at Tullamarine in the foreseeable future.

[8] The Applicant also advised that with respect to the Oakleigh South Selling Equipment and Technical Services (SETS) employees, the termination of the Agreement would have no effect as it was replaced by a 2009 agreement which was subsequently replaced by the Schweppes Australia Selling Equipment Technical Services Enterprise Agreement (VIC) 2012-2015 on 3 July 2012.

[9] I wrote to the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), employee organisations covered by the Agreement, on 17 January 2014 seeking their views regarding the application. The Applicant also provided the abovementioned statutory declaration to both organisations on 24 January 2014.

[10] A follow-up email was sent to the AMWU and CEPU on 12 February 2014 but no responses have been received regarding the termination of the Agreement. That follow-up email foreshadowed an order being made in the absence of any response from either organisation.

[11] Having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that it is not contrary to the public interest to terminate the agreement and that it is appropriate to do so having regard to all the circumstances.

[12] The termination of the agreement shall operate from the date of this decision.

DEPUTY PRESIDENT

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