SDV (Australia) Pty Ltd - [2013] FWCA 4681

[2013] FWCA 4681

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)

SDV AUSTRALIA PTY LTD - WAREHOUSE COLLECTIVE AGREEMENT 2008 - NSW

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.

[3] 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.

[4] 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

[5] 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 supported the application to terminate the TWU Agreement. This submission was said to be grounded on the views of eight signatories to Toolbox meetings and eight responses to emails from a number of employees (notably Managers and Supervisors).…

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.

Continue reading SDV (Australia) Pty Ltd

Details

AGLC: SDV (Australia) Pty Ltd [2013] FWCA 4681
Case: [2013] FWCA 4681
Decision Date: 22 JULY 2013

CaseChat Overview and Summary

In the matter of SDV (Australia) Pty Ltd, the applicant sought to terminate an expired enterprise agreement. The dispute involved two agreements, one of which had expired while the other was still in force. The opposition came from the Union, which argued against the termination of the expired agreement. The crux of the matter was whether the applicant had the authority to terminate the expired agreement and whether doing so would be in the public interest. The court needed to determine the legal effect of the expiry of the second agreement and whether the employees' signed approval to terminate the agreement was valid, especially given that they had been misinformed.

The court examined the principles of enterprise bargaining and the limitations on terminating expired agreements. The applicant's argument was that other employees had signed a document approving the termination of the expired agreement. However, the court found that the employees had been given incorrect information regarding the implications of their signatures. The court also noted that negotiations for a new agreement were underway, which further complicated the matter. The views of the Union delegate were not disputed, and there was a lack of cogent evidence to support the application for termination. The court concluded that terminating the expired agreement would be contrary to the public interest and that it would not be appropriate to proceed with the application.

The court dismissed the application, highlighting that the termination of the expired agreement would not be in the public interest. The court emphasised the importance of proper information being provided to employees when seeking their approval on such matters. The court also underscored the significance of the ongoing negotiations for a new agreement, indicating that these negotiations should be allowed to proceed without interference. The decision underscored the need for careful consideration of the principles of enterprise bargaining and the limitations on terminating expired agreements, ensuring that the rights and interests of all parties are protected.

Orders