Tasmanian Alkaloids Pty Ltd T/A Extractas Bioscience

[2023] FWCA 2121

[2023] FWCA 2121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Tasmanian Alkaloids Pty Ltd T/A Extractas Bioscience

(AG2023/1875)

TASMANIAN ALKALOIDS PTY LTD EMPLOYEE AGREEMENT 2017

Tasmania
COMMISSIONER WILSON	MELBOURNE, 12 JULY 2023

Application for termination of the Tasmanian Alkaloids Pty Ltd Employee Agreement 2017

1. On 13 June 2023, Tasmanian Alkaloids Pty Ltd T/A Extractas Bioscience (the Applicant) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Tasmanian Alkaloids Pty Ltd Employee Agreement 2017 (the Agreement) after its nominal expiry date.

1. The Agreement covers the National Union of Workers, now the United Workers' Union (the UWU).

1. 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 the 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.”

1. The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date which was 10 July 2021.

1. Section 226 of the Act sets out when the Fair Work Commission (the Commission) must terminate an expired enterprise agreement where an application to terminate an agreement is made.

1. The material before the Commission includes the originating application and an accompanying statutory declaration filed by the employer in support of the application. An amended statutory declaration was also filed at my request providing further information on the question of why continued operation of the Agreement would be unfair for the employees covered by the Agreement. The amended statutory declaration was provided on 19 June 2023 by the Executive General Manager – People and Culture.

1. On 20 June 2023 I directed the Applicant to serve the Form F24B and the revised Form F24C material on the relevant union and on each employee presently covered by the Agreement and to invite the provision of the union and each employees’ views on the s.225 application within 7 calendar days.

1. No employee presently covered by the Agreement provided any views on the termination application.

1. On 26 June 2023 the UWU advised that they opposed the termination of the 2017 Agreement.

1. On 28 June 2023 the Applicant wrote to my Chambers and the UWU proposing to address the UWU’s concerns by documenting a Heads of Agreement between them that will govern the terms and conditions of employment of its casual security officer and any future casual employee employed by the company and whose work is deemed to be Award covered.

1. On 3 July 2023, I advised the parties that I would be prepared to terminate the Agreement if the Applicant provided an undertaking that can be placed on the Commission’s file in the terms referred to in the Applicant’s correspondence dated 28 June 2023 and if the UWU then consented to termination of the Agreement.

1. The Applicant consented to provide an undertaking and the UWU advised that it was content to withdraw its opposition to the application, conditional on the undertaking that has been provided by the Applicant. The UWU requested that I note the undertaking given in any written decision, and that the UWU’s consent to the application be noted as being conditional on that undertaking having been provided.

1. On 10 July 2023 the Applicant provided the undertaking at Annexure A. The UWU confirmed the same day that they withdraw their objection to the termination application.

1. I am satisfied that each of the requirements of s.226 of the Act have been met. As a result, I must approve the termination of the Agreement.

1. The Agreement is terminated and, pursuant to s.227 of the Act, the termination will come into effect from 13 July 2023.

COMMISSIONER

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Annexure A