Seaway Holdings Pty Ltd T/A Seaway Intermodal Pty Ltd

[2022] FWCA 1388

[2022] FWCA 1388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Seaway Holdings Pty Ltd T/A Seaway Intermodal Pty Ltd

(AG2022/1044)

Road transport industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 22 APRIL 2022

Application for termination of the Ironhorse Intermodal Linehaul Drivers Agreement 2016.

1. On 7 April 2022, Seaway Holdings Pty Ltd T/A Seaway Intermodal Pty Ltd (Seaway Intermodal) filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Ironhorse Intermodal Linehaul Drivers Agreement 2016 (the Agreement). The Agreement is a single enterprise agreement which nominally expired on 31 October 2020. I note that the Agreement covers the Transport Workers’ Union of Australia (the TWU).

1. Accompanying the Application was a Form F24C statutory declaration made by Angela Selleck, HR Supervisor, on 7 April 2022 in which it is declared there are no employees covered by the Agreement. Seaway Intermodal advised that it had served the Application and statutory declaration on the TWU.

1. I issued Directions on 8 April 2022 requiring the TWU to advise the Commission whether or not it opposes the application of Seaway Intermodal to terminate the Agreement.

1. On 20 April 2022, in an email to my Chambers, Mr Justin Cooney, Industrial Officer of the TWU confirmed that it neither supports nor opposes the application.

Legislation

1. The Act relevantly 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.”

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.”

Consideration

Section 225

1. An employer covered by an agreement may apply under s.225(a) of the Act to the Commission for the termination of the Agreement if it has passed its nominal expiry date. As noted above, the Agreement nominally expired on 31 October 2020. Further, Ms Selleck declared that Seaway Holdings Pty Ltd acquired Ironhorse Intermodal and the entity became Seaway Intermodal Pty Ltd on 5 February 2019. I am satisfied there was a transfer of business from Ironhorse Intermodal to Seaway Intermodal and as such, Seaway Intermodal became the employer covered by the Agreement.[1] It follows that I am satisfied that Seaway Intermodal has standing to bring the Application under s.225(a) of the Act.

Section 226

1. The Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd[2]  concluded that it cannot be expected that the terms and conditions of an agreement will continue unaltered in perpetuity after it has passed its expiry date. This is because the Act contemplates the terms and conditions of an agreement may be altered by making a new agreement or by terminating the existing agreement.[3]

1. In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement (s.226(a)) and it is appropriate to do so, taking into account all the circumstances (s.226(b)). In this latter regard, I note the employer consents to the termination of the Agreement and the employee organisation covered by the Agreement does not oppose the termination. I also note that as there are no longer any employees covered by the Agreement, there are no views of employees for me to take account of nor any effects of termination to be felt.

1. Given my conclusions above, I must terminate the Agreement. In accordance with s.227 of the Act, the termination will take effect from 22 April 2022.

DEPUTY PRESIDENT

[1] Fair Work Act 2009 (Cth), s 313.

[2] [2015] FWCFB 540.

[3] Ibid at [176].

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