Seisia Enterprises Pty Ltd

[2016] FWCA 5508

[2016] FWCA 5508

FAIR WORK COMMISSION

DECISION

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

Seisia Enterprises Pty Ltd
(AG2014/9893)

SEISIA ENTERPRISES ENTERPRISE AGREEMENT 2010-2011

Retail industry
COMMISSIONER SPENCER	BRISBANE, 2 SEPTEMBER 2016

Application for termination of the Seisia Enterprises Enterprise Agreement 2010-2011.

[1] Seisia Enterprises Pty Ltd (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Seisia Enterprises Enterprise Agreement 2010-2011 (the Agreement).

[2] The Agreement has a nominal expiry date of 30 June 2011.

[3] This matter has had a protracted history with the Australian Workers’ Union, Queensland (AWU), being a party to the Agreement and initially opposing the termination of the Agreement. Multiple conferences have been held and the parties have come to a consent position regarding the termination.

[4] The parties have provided an undertaking to the Commission, and it is on this basis that the AWU consents to the application.

Legislation

[5] Section 226 of the Act provides:

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.

Consideration

[6] The Commission is satisfied that an application for termination of an enterprise agreement has been made under s.225 of the Act. The Commission must terminate the Agreement after having taken into account those matters in s.226 of the Act and forming the requisite satisfaction. Each matter will be considered in turn.

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[7] The Applicant submitted that it supported the termination. The Applicant also submitted that the employees had unanimously voted to support the termination of the Agreement on the condition that there would be an undertaking ensuring continuity of employment rights.

[8] The AWU indicated that it did not oppose the termination of the Agreement on the basis that an undertaking has been made. The undertaking is attached to this Decision at Annexure A.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[9] The Applicant submitted that it is a Not for Profit organisation and that it could not maintain existing levels of enterprise and commercial activity under the current terms of employment for the workforce.

[10] The AWU submitted that the undertaking ensured that all employees will remain on their current conditions of employment until they choose to be covered solely by a newly-negotiated enterprise agreement or if a new enterprise agreement is not reached within 12 months. The AWU noted that the undertaking provided that any new enterprise agreement reached will incorporate the terms and conditions of the Agreement by way of a “grandfather” clause. Further, the AWU submitted that no employees will suffer a loss in their current entitlements and would still be eligible for a wage increase through a new enterprise agreement.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[11] The Applicant submitted that the termination of the Agreement was not contrary to the public interest as the current employees’ rights and entitlements will be preserved by the undertaking and it would enable the enterprise to operate on a more competitive basis.

Conclusion

[12] The Commission is satisfied that an application for the termination of an enterprise agreement has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[13] The Commission is satisfied that it is not contrary to the public interest to order the termination of the Agreement.

[14] The Commission is satisfied that it is appropriate in all the circumstances to termination the Agreement, having considered the views of the Applicant, and the AWU and the views and circumstances of the employees covered by the Agreement, and the attached Undertaking provided by the Applicant.

[15] Having considered the material and s.226 of the Act, the Agreement must be terminated.

[16] The termination will operate from the date of this Decision.

[17] I Order accordingly.

COMMISSIONER

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Annexure A