Sureway Employment & Training Pty Ltd
[2019] FWCA 4639
•3 JULY 2019
| [2019] FWCA 4639 |
| 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
Sureway Employment & Training Pty Ltd
(AG2019/1666)
SUREWAY CONSULTANTS EMPLOYEE COLLECTIVE AGREEMENT 2006
Scientific services | |
DEPUTY PRESIDENT BULL | SYDNEY, 3 JULY 2019 |
Application for termination of the Sureway Consultants Employee Collective Agreement 2006. Agreement terminated.
[1] Sureway Employment and Training Pty Ltd has made an application pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act), as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), to terminate the Sureway Consultants Employee Collective Agreement 2006 (the Agreement).
[2] The Agreement has a nominal expiry date of 1 January 2010 and is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.
[3] Schedule 3, Item 16(1) of the Transitional Act states:
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.
[4] Section 225 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 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.
[5] Two employers are named in the Agreement:
● Sureway Business Training Pty Ltd
● Sureway Consultants Pty Ltd
[6] It is noted that the application to terminate the Agreement is made by Sureway Employment and Training Pty Ltd who are not a named employer in the Agreement, thus not appearing to meet the requirements of s.225(a) of the Act as extracted above. On raising this the applicant has advised that:
• Sureway Business Training Pty Ltd changed its name to Sureway Skills Training Pty Ltd on 2 September 2008; and
• Sureway Consultants Pty Ltd changed its name to that of the applicant, Sureway Employment and Training Pty Ltd on 5 March 2009.
[7] Accepting the name change of a named employer party to the Agreement Sureway Consultants Pty Ltd in 2009 to Sureway Employment and Training Pty Ltd I am satisfied that the applicant has the necessary standing to bring the application as an employer covered by the Agreement.
[8] It is also clear that the Agreement has passed its nominal expiry date.
[9] Section 226 of the FW Act sets out the requirements to be met before the Tribunal can terminate an agreement where an application is made under s.225.
“226 When FWA must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:
(a) FWA is satisfied that it is not contrary to the public interest to do so; and
(b) FWA 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.”
[10] The application was accompanied by a statutory declaration of Arwen Anderson the applicant’s General Manager People and Culture which addressed reasons why the Agreement’s termination would not be contrary to the public interest.
[11] The statutory declaration states that:
• a comparison between the relevant award the Labour Market Assistance Industry Award 2010 (the Award) found minimal differences that would negatively impact those covered by the Agreement
• that while additional leave under the Agreement will be lost for employees, the applicant has committed to providing an additional one week’s leave after an employee has reached 3 years’ service on termination of the Agreement
• coverage under the Award would simplify industrial instrument coverage across the business
[12] The initial application was absent any details covering s.226(b)(i) as such the Commission sought further information. The applicant advised that Sureway Skills Training Pty Ltd currently has no employees covered by the Agreement.
[13] In respect to the views of employees of Sureway Consultants Pty Ltd covered by the Agreement the applicant states:
• approximately 260 employees are covered by the Agreement.
• a written analysis of conditions in the Agreement as compared to the Award and the NES was provided to all employees
• 14 responses were received of which 6 responses indicated support for the Agreement’s termination, 7 responses required clarifications which were provided and one provided a suggestion which was already in place.
[14] Taking into consideration the views of the employees as conveyed by the applicant and the views of the employer, and there being no industrial organisation covered by the Agreement I am satisfied that the requirements of s.226 of the Act have been met including that termination of the Agreement is not contrary to the public interest.
[15] The application to terminate the Agreement is approved.
[16] In accordance with s.227 of the Act, the Agreement is terminated with effect from the date of this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AC300709 PR709988>
0
0
0