Surfside Buslines Pty Ltd
[2010] FWA 5167
•14 JULY 2010
[2010] FWA 5167 |
|
DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Surfside Buslines Pty Ltd
(AG2010/5671)
Passenger vehicle transport (non rail) industry | |
COMMISSIONER LEWIN | MELBOURNE, 14 JULY 2010 |
[1] This decision concerns an application for the termination of the Surfside Buslines Pty Ltd Certified Agreement 2005 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act). The Agreement became a transitional instrument, namely, a collective agreement based transitional instrument for the purposes of the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 (the Transitional Act) and the termination of the Agreement is therefore subject to the provisions of Item 16 of Schedule 3 of the Transitional Act as follows:
“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.”
[2] The application has been made by Surfside Buslines Pty Ltd (Surfside). The application was lodged with Fair Work Australia on 11 February 2010. Surfside is an employer covered by the Agreement.
[3] Section 225 of the Act provides for applications to be made for the termination of enterprise agreements after the nominal expiry date of an agreement by, among other entities, an employer covered by the Agreement 1. Section 226 of the Act sets out the considerations Fair Work Australia must take into account in determining whether or not an agreement should be terminated and is set out below:
“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.”
[4] In my view, the termination of the agreement would not be contrary to the public interest.
[5] This matter was listed for Hearings jointly with an application by Surfside for the approval of a new enterprise agreement, and applications to deal with a bargaining dispute by Thomson and Others on 12 March 2010 and 29 April 2010. At the Hearings, Mr Greg Hansen appeared for Surfside. Ms Amanda Rigby and Mr Adam Carter represented the Transport Workers’ Union (the TWU). Mr Andrew Thomson, an employee, appeared on his own behalf. Several other employees were in attendance at both Hearings.
[6] Substantial parts of the Hearings related to the bargaining disputes lodged by Thomson and others under s.240 of the Act and the application for approval of the new Surfside Agreement under s.185 of the Act. The disputes under s.240 of the Agreement were ultimately resolved and the new Surfside Agreement was subsequently approved in a Decision issued by the Tribunal on 7 May 2010 [PR996912] 2. At the Hearings I sought the views of Surfside, the TWU and employees present regarding the proposed termination of the Agreement. The employer, the TWU and the employees consented to both the approval of a new surfside agreement the termination of the Agreement and in the circumstances of the bargaining disputes having been resolved.
[7] The Agreement is terminated pursuant to s.226 of the Act. An order will issue accordingly.
COMMISSIONER
Appearances:
Mr Greg Hansen, Surfside Buslines Pty Ltd
Ms Amanda Rigby and Mr Adam Carter, Transport Workers’ Union
Mr Andrew Thomson
Hearing details:
2010
12 March and 29 April
Brisbane
1 S.225(a) of the Fair Work Act 2009.
2 [2010] FWAA 3648
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