Superior Pak Pty Ltd T/A Superior Pak

[2016] FWCA 5494

[2016] FWCA 5494

FAIR WORK COMMISSION

DECISION

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

Superior Pak Pty Ltd T/A Superior Pak
(AG2016/3427)

TRANSPACIFIC SUPERIOR PAK EAGLE FARM ENTERPRISE AGREEMENT 2011

Waste management industry
COMMISSIONER SPENCER	BRISBANE, 15 AUGUST 2016

Application for termination of the Transpacific Superior Pak Eagle Farm Enterprise Agreement 2011.

[1] Superior Pak Pty Ltd T/A Superior Pak (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Transpacific Superior Pak Eagle Farm Enterprise Agreement 2011 (the Agreement).

[2] The Agreement has a nominal expiry date of 17 February 2015.

[3] There are no employee organisations covered by the Agreement.

Legislation

[4] 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

[5] The Commission is satisfied that an application for termination of an enterprise agreement has been made under s.225 of the Act. The current employer (the Applicant) purchased the business from the employer named in the Agreement in 2013. 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

[6] The Applicant submitted that it supported the termination.

[7] The Applicant submitted that the termination of the Agreement would mean simplification of the Company’s Employee Relations process and that the termination of the Agreement would remove conditions from the previous owner of the business that were not relevant to the current business.

[8] The Applicant provided 18 documents from employees, in which employees were asked for their vote on the proposed “cancellation” of the Agreement and replacement with the Modern Award in conjunction with a Letter of Engagement. Of the 18 provided, 14 supported the termination, 2 did not support the application and 2 did not specify their support or otherwise. The Applicant provided a list from payroll setting out a total of 22 employees. The list indicated that 3 employees were on annual leave (and these employees did not return a document) and 1 employee was an administrative employee.

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 the applicable Modern Award (the Vehicle Manufacturing, Repair, Services and Retail Award 2010) already covered most of the conditions set out in the Agreement. The Applicant submitted that the employees are better off financially with increased hourly rates. The Applicant provided a breakdown of the current rates and the proposed rates for the employees, along with a sample letter of engagement.

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

[10] The Applicant submitted that the termination of the Agreement was not contrary to the public interest.

Conclusion

[11] 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.

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

[13] 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 views and circumstances of the employees covered by the Agreement.

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

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

[16] I Order accordingly.

COMMISSIONER

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