Sydney Fish Market Pty Ltd

[2021] FWCA 553

[2021] FWCA 553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Sydney Fish Market Pty Ltd
(AG2021/133)

SYDNEY FISH MARKET ENTERPRISE AGREEMENT 2014

Seafood processing
DEPUTY PRESIDENT BOYCE	SYDNEY, 4 FEBRUARY 2021

Application for termination of the Sydney Fish Market Enterprise Agreement 2014.

[1] This decision concerns an application made by Sydney Fish Market Pty Ltd (Sydney Fish Market) for the termination of the Sydney Fish Market Enterprise Agreement 2014 (Agreement).

[2] This application is made under s.225 of the Fair Work Act 2009 (Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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”.

[5] The Applicant has provided in support of its application a statutory declaration from Mr Allan Renkema, who is a Human Resources Consultant for the Applicant.

[6] In summary, Mr Renkema says as follows:

(a) Sydney Fish Market operates a wholesale auction and working fish market, hosting six wet fish retailers offering Australia’s biggest variety of fresh seafood.

(b) Previously a state-run body known as the NSW Fish Marketing Authority, Sydney Fish Market was formed in 1994, when the NSW Government privatised the marketing of seafood. Since that time, two equal shareholders (the Catchers Trust, and the Sydney Fish Market Tenants and Merchants Pty Ltd) jointly own Sydney Fish Market. Essentially, the operation of the market has moved from a government body, to a commercial enterprise.

(c) A wholesale government driven redevelopment and relocation of the Sydney Fish Market is underway and is anticipated to be completed by May 2024. The market will sit at the heart of a revitalised Blackwattle Bay. The new Sydney Fish Market will deliver adjacent public promenades, a ferry wharf and more than 6,000 square metres of new public space.

(d) 53 employees are covered by the Agreement:

(i) There are 25 employees that are considered “Floor Staff”. On termination of the Agreement these Floor Staff will fall within the scope of, and be covered by, the Seafood Processing Award 2020. They will also be provided a contract of employment.

(ii) The Agreement is broad in its application. The employment of several classifications which ordinarily would not be covered by an award are captured by its scope. 28 employees are considered salaried employees. On termination of the Agreement they will not be covered by an award. Their terms will be underpinned by legislation, coupled with a written contract of employment.

(e) Current Floor Staff shall have the following provisions of the Agreement grandfathered:

(i) additional long-service leave entitlements over legislation;

(ii) “sick leave” entitlements over legislation;

(iii) redundancy over legislation; and

(iv) current annualised salaries in the least maintained.

(f) Current salaried employees who will not be covered by an award shall have the following provisions of the Agreement grandfathered, in addition to a short-term incentive program being introduced:

(i) redundancy over legislation;

(ii) bereavement leave over legislation;

(iii) onsite carparking until 2024;

(iv) current annualised salaries in the least maintained.

(g) Between 1 December 2020 and 15 January 2021, Sydney Fish Market sought to inform its employees regarding the consequences of terminating the Agreement. These steps included, inter alia, many meetings with the various cohorts of employees, letters and emails, documents comparing the differences between the Agreement and post-Agreement rights and entitlements, and an extension of time to cast a vote so as to allow employees a further period to consider their position.

(h) By 15 January 2021, 49 employees covered by the Agreement cast a valid vote, and 40 of those employees voted to approve the termination of the Agreement.

Consideration

[7] I am satisfied that termination of the Agreement is not contrary to the public interest.

[8] Taking into account the views of the employer—namely the pending relocation of its operations and the substantial changes that move will bring—I do consider that in all the circumstances here that it is appropriate to terminate the Agreement. I also note that 40 employees voted to approve the termination of the Agreement, being 75% of the total number of employees. Having considered the evidence before me, I take the view that the employees were sufficiently informed of the result of the change and that their views are genuinely reflected in the outcome of the vote. I have also taken into account the likely effect the termination of the Agreement will have on the relevant employees.

[9] Accordingly, the Agreement is terminated and pursuant to s.227 of the Act, the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

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