Skilled Group Ltd

[2013] FWCA 5379

[2013] FWCA 5379

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

Skilled Group Ltd
(AG2013/1851)

SKILLED GROUP LTD CAPITAL LIQUOR (CLAYTON SITE) NATIONAL UNION OF WORKERS CERTIFIED AGREEMENT 2005 - 2011

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COMMISSIONER CRIBB	MELBOURNE, 5 AUGUST 2013

Application for termination of the Skilled Group Ltd Capital Liquor (Clayton Site) National Union of Workers Certified Agreement 2005 - 2011.

[1] This decision concerns an application by Skilled Group Limited (Skilled), under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (the Act).

[2] The application seeks to terminate the Skilled Group Ltd Capital Liquor (Clayton Site) National Union of Workers Certified Agreement 2005 - 2011 (the Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 30 June 2011.

The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 of the Act states:

“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] A statutory declaration was received from Ms C Ingleby, Manager of Workplace Relations Advisory Service of Skilled Group Limited, dated 4 July 2013. The statutory declaration stated that the Agreement only covered employees of Skilled who were engaged to perform work at a client site belonging to Capital Liquor, located at 1400 Centre Road, Clayton, Victoria. Capital Liquor underwent a change of ownership in 2011. Skilled, consequently, lost the contract to supply labour to Capital Liquor at the Clayton site on or around October 2011. Also, the statutory declaration stated that, since that date, Skilled does not engage any employees who would be covered by the Agreement.

[6] The National Union of Workers (the union) was advised of the application. The union notified the Commission that it did not wish to make any submissions and did not oppose the application. There are no employees affected by the proposed termination of the Agreement.

[7] The views of the employer and the union have been taken into account and I am satisfied that the termination of the Agreement would not be contrary to the public interest (section 226(a) of the Act).

[8] In accordance with section 226(b) of the Act, I have considered the circumstances of the matter and have concluded that the termination of the Agreement is appropriate.

[9] The termination will take effect from today’s date, 5 August 2013.

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