DECISION

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

T S Burstows Funerals Pty Ltd
(AG2015/1899)

BURSTOWS COLLECTIVE AGREEMENT 2007-2009

Funeral directing
COMMISSIONER BOOTH	BRISBANE, 26 FEBRUARY 2015

Application for termination of the Burstows Collective Agreement 2007-2009.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act), however, the application is terminating a Collective agreement-based transitional instrument. Therefore Schedule 3 Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 applies to terminate the Burstows Collective Agreement 2007-2009 (the Agreement). The nominal expiry date of the Agreement was 27 November 2009.

[2] Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 states:

16 Collective agreement-based transitional instruments: termination by the FWC

(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.

[3] Subdivision C of Division 7 of the the Act sets out the specific requirements that must be met in relation to the termination of an enterprise agreement by employers and employees.

[4] Mr Paul Canavan, the Business Manager, provided a statutory declaration attesting to the employees concerns with the Agreement and confirmed in an email dated 20 February 2015 that any Individual Flexibility Arrangement (IFA) will meet the National Employment Standards and that the terms and conditions of each IFA will result in the employee being better off overall. Or the employee has the option of reverting to the Funeral Industry Award 2010.

[5] I am satisfied that the requirements of s.226 of the Act for the termination of an enterprise agreement after its nominal expiry date have been met.

[6] The termination of the Agreement is approved with effect from 26 February 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Burstows Funerals Pty Ltd applied for the termination of the Burstows Collective Agreement 2007-2009, alleging that the agreement had become redundant due to the cessation of operations of the business. The applicant contended that the collective agreement was no longer applicable as the business had closed, and therefore, the agreement should be terminated. The respondent, Funeral Directors and Embalmers Association of NSW Inc, argued that the agreement remained in force and that the applicant had not provided sufficient grounds for its termination.

The legal issues before the Commission were whether the collective agreement had indeed become redundant and, if so, whether the application for its termination should be granted. The Commission considered the definition of "redundant" under the Fair Work Act and the circumstances surrounding the cessation of the applicant's business operations. The respondent raised concerns about the potential impact of the termination on the employees who were covered by the agreement.

The Commission found that the applicant's business had ceased operations, and the collective agreement was no longer applicable. The Commission emphasised the importance of protecting the rights of employees in the event of a business closure. The Commission concluded that the agreement had indeed become redundant and granted the application for termination. The Commission ordered that the Burstows Collective Agreement 2007-2009 be terminated, effective from the date of the decision. The Commission also directed the applicant to provide the respondent with a copy of the decision and any other relevant documents.

T S Burstows Funerals Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established