Specialty Packaging Group Pty Ltd T/A Opal Specialty Packaging

[2022] FWCA 2517

[2022] FWCA 2517

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Specialty Packaging Group Pty Ltd T/A Opal Specialty Packaging

(AG2022/2073)

Orora Specialty Packaging Northwest Enterprise Agreement 2018

Graphic Arts
Commissioner Matheson	SYDNEY, 26 JULY 2022

Application for termination of the Orora Specialty Packaging Northwest Enterprise Agreement 2018.

1. On 23 June 2022, Specialty Packaging Group Pty Ltd T/A Opal Specialty Packaging (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Orora Specialty Packaging Northwest Enterprise Agreement 2018 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.

1. The Agreement is a single enterprise agreement. It was approved by Commissioner Harper-Greenwell on 22 October 2018.[1]

1. The nominal expiry date of the Agreement is 31 May 2021.

Legislation

1. The relevant provisions of the Act are 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 – s.225

Is the Applicant an employer covered by the Agreement?

1. Clause 1(a) names ‘Specialty Packaging Group Pty Ltd trading as Orora Specialty Packaging’ as a party to the Agreement. The Applicant is Specialty Packaging Group Pty Ltd T/A Opal Specialty Packaging and I am satisfied it is the same legal entity.

1. Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.

Has the Agreement passed its nominal expiry date?

1. Clause 2 of the Agreement provides that the Agreement’s nominal expiry date is 31 May 2021. Having considered the materials before the Commission and clause 2 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.

Consideration – s.226

Section 226(a) – Public interest

1. Section 226(a) of the Act requires the Commission to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards.[2] The notion of public interest is distinct in nature from the interests of the parties.[3]

1. It is declared in the Form 24C that:

·   the Agreement covered employees at a site that is no longer active and has been relocated to a new facility; and

·   there are no employees covered by the Agreement.   

1. In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

Section 226(b) – Appropriateness

1. The Applicant submitted that termination of the Agreement would have no affect on any of the relevant parties as the site is no longer operational and the business has relocated to a new facility where a new agreement is in place.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is the employee organisation covered by the Agreement. The Commission sought the views of the AMWU on the Application. The AMWU confirmed it did not have any objections to the Application to terminate the Agreement.

Conclusion

1. Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.

1. Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 26 July 2022. An Order to that effect will be issued in conjunction with this Decision.

COMMISSIONER

[1] [[2018] FWCA 6491].

[2] Re Kellogg Brown and Root, Bass Strat (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40-41.

[3] Ibid, 40.

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