Statewide Independent Wholesalers Limited

[2021] FWCA 851

[2021] FWCA 851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Statewide Independent Wholesalers Limited
(AG2020/4191)

STATEWIDE INDEPENDENT WHOLESALERS LIMITED - TRANSPORT WORKERS UNION DRIVERS ENTERPRISE AGREEMENT, 2015 - 2017

Road transport industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 FEBRUARY 2021

Application for termination of the Statewide Independent Wholesalers Limited - Transport Workers Union Drivers Enterprise Agreement, 2015 - 2017.

[1] Statewide Independent Wholesalers Limited (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Statewide Independent Wholesalers Limited – Transport Workers Union Drivers Enterprise Agreement 2015-2017 1(the Agreement). The Agreement is expressed to cover the Applicant, its employees within Tasmania who are employed to drive vehicles anywhere within the State of Tasmania, and the Transport Workers Union of Australia (TWU). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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.”

[3] 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.”

[4] A Form F24C statutory declaration completed by Mr Scott Latham, who is the HR Manager for the Applicant, accompanied the application. Mr Latham deposed that;

“The Enterprise Agreement expired on the 27th May 2017

The conditions of the agreement rolled over and annual wage increases were agreed between the Team Members covered by the Agreement and the Company each year after consultation.

The Team Members covered by the Agreement, requested this process be formalised and agreement was reached to terminate the Agreement and transition the Team Members to Common Law contracts that included those clauses contained in the agreement important to the Team Members. The Team Members were asked on several occasions to consider and seek representation, and were asked to seek support from the TWU, but this was not taken up.

SIW consulted heavily with the Team Members of the Enterprise Agreement to ensure all circumstances relating to the likely effects of the termination of the Enterprise Agreement was considered and understood. Team Members nominated those clauses from the Agreement that they wanted included in the Individual contracts. The individual contracts are the same for each Team Member.

Team Members were provided draft Individual Contracts to review and provided 21 days to comment or request changes. One change was requested to clause 10. Overtime, which was agreed to by the Company. The new individual contract includes those clauses from the Agreement that were nominated.

The individual contracts do not contain any items that disadvantage the Team Members.”

[5] Attached to Mr Latham’s statutory declaration was a copy of the standard contract of employment entered into with the Applicant’s employees and which would apply if the Agreement were terminated. The contracts of employment largely preserve the key conditions contained within the Agreement. While not stated in the contract of employment it is the case that, should the Agreement be terminated, the contracts of employment of employees would be underpinned by the Road Transport and Distribution Award 2020 2(the Award)

[6] The TWU is an organisation covered by the Agreement. During a mention conducted on 29 January 2021, the TWU advised that they do not object to the application.

[7] Directions were issued by my Chambers on the 29 January 2021, requiring that the application and supporting materials be served by the Applicant on the employees who are covered by the Agreement, and directed that the TWU and any employees that wished to make any submissions in support of or in opposition to the application, file any submissions, witness statements and materials by 5:00pm Tuesday, 16 February 2021. No submissions were received from either the TWU or employees of the Applicant.

[8] Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[9] The termination will operate from 18 February 2021. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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