SDV (Australia) Pty Ltd - [2013] FWC 5385

[2013] FWC 5385

The document previously issued on 22 July 2013 with the reference [2013] FWCA 4681 [PR538916] is replaced with the attached.

The document reference [2013] FWCA 4681 [PR538946] has been amended to [2013] FWC 5385 [PR539809].

Sean Howe

Associate to Deputy President Sams

Dated 6 August 2013

[2013] FWC 5385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

SDV (Australia) Pty Ltd
(AG2013/6196)

Road transport industry
DEPUTY PRESIDENT SAMS	SYDNEY, 22 JULY 2013

Application to terminate expired Agreement - two Agreements covering the same employees - opposition of Union - other employees’ signed approval to terminate Agreement - negotiations for a new Agreement - legal effect of expiry of second Agreement - views of Union delegate not disputed - lack of cogent evidence supporting application - employees given wrong information - principles of enterprise bargaining - limitations on terminating expired agreements - termination of Agreement would be contrary to the public interest and it would not be appropriate to do so - application dismissed.

BACKGROUND

[1] This decision will determine an application, filed by SDV (Australia) Pty Ltd, (‘SDV’ or the ‘applicant’) to terminate the SDV Australia Pty Ltd - Warehouse Collective Agreement, 2008 [AC326805] (the ‘TWU Agreement’). The TWU Agreement passed its nominal expiry date on 7 August 2012 and continues in force unless or until it ceases to operate by virtue of the circumstances prescribed in s 54(2) of the Fair Work Act 2009 (the ‘Act’).

[2] The applicant’s core business is the movement of intercontinental air and ocean freight. For reasons which are not entirely clear, the applicant has two collective agreements in place, the TWU Agreement and another agreement SDV Australia Pty Ltd - Warehouse Collective Agreement 2008 [AC324566] (the ‘other Agreement’) which cover the same categories of employees at three sites in New South Wales - Arndell Park, Smithfield and Banksmeadow.

[1] As might be obvious, the TWU Agreement expressly covers the Transport Workers’ Union (the TWU or the ‘Union’) at Clause 2. Two Awards are referred to in the Definitions clause the Transport Industry (State) Award [AN120594] as relevant to forklift duties and the Warehouse Employees - General (State) Award [AN120633] as relevant to storemen/packer duties. It may be assumed that these Awards are Notional Agreements Preserving State Awards (NAPSAs). Both the Agreements have the same title and the same classifications at Clause 5. These are:

● Warehouse Floor Manager;
● Warehouse Administration Manager;
● Warehouse Operator; and
● Administration Officer.

[1] The coverage clause of both Agreements is expressed as follows:

‘This agreement shall apply to SDV Australia Pty Ltd and employees employed in New South Wales in the classifications in Clause 5 - Rates of Pay.’

THE EVIDENCE

[2] The applicant’s case rested primarily on its view that the Union represented one group of Warehouse Operators at one site, Arndell Park, which comprised only 8% of its workforce. It claimed the remaining 92% of employees…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SDV (Australia) Pty Ltd [2013] FWC 5385
Case: [2013] FWC 5385
Decision Date: 22 JULY 2013

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by SDV (Australia) Pty Ltd to terminate an expired enterprise agreement. The dispute arose as two agreements covered the same employees, with the union opposing the application. The company argued that other employees had approved the termination of the agreement and that negotiations for a new agreement were ongoing. The union contested the application, asserting that there was no cogent evidence supporting the termination and that employees had been given incorrect information regarding the status of the agreement.

The court had to determine several legal issues, including the legal effect of the expiry of the second agreement, the views of the union delegate, and whether the termination would be contrary to the public interest. The court needed to consider the principles of enterprise bargaining and the limitations on terminating expired agreements. The union argued that the application should be dismissed as it would be contrary to the public interest and inappropriate to terminate the agreement.

The Fair Work Commission concluded that the application should be dismissed. The court found that the employees had been given wrong information, and there was a lack of cogent evidence supporting the application. The court emphasised the importance of the principles of enterprise bargaining and the limitations on terminating expired agreements. The court held that terminating the agreement would be contrary to the public interest and would not be appropriate to do so. Therefore, the application was dismissed.

Orders