The Trustee for Sells Business Trust and the Trustee for the Burcul Business Trust T/A Get Wines Direct

[2013] FWCA 2267

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

The Trustee for Sells Business Trust and the Trustee for the Burcul Business Trust T/A Get Wines Direct
(AG2013/772)

GET WINES DIRECT (WAREHOUSE/TASTING ROOM) COLLECTIVE AGREEMENT - 2007

Wine industry
COMMISSIONER BOOTH	BRISBANE, 16 APRIL 2013

Application for termination of the Get Wines Direct (Warehousing/Tasting Room) Collective Agreement .

[1] On 2 April 2013, The Trustee for Sells Business Trust and the Trustee for the Burcul Business Trust T/A Get Wines Direct (the Applicant) lodged an application pursuant to Schedule 3 item 16 of the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 (the Transitional Act), to terminate Get Wines Direct (Warehousing/Tasting Room) Collective Agreement (the Agreement).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement including a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument and its nominal expiry date was 13 August 2012.

[4] The relevant provisions of the Act are as follows:

“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 FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] An affidavit was provided by Ms Kerry Heath, Administration Manager for The Trustee for Sells Business Trust and the Trustee for the Burcul Business Trust T/A Get Wines Direct providing information in relation to s.226(b)(i) and (ii).

[6] I am satisfied that it is not contrary to the public interest to terminate the agreement and that termination of the agreement is appropriate having regard to the circumstances of the employees and employer.

[7] The Agreement shall be terminated pursuant to section 226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 16 April 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In this matter, the Trustee for the Sells Business Trust and the Trustee for the Burcul Business Trust, trading as Get Wines Direct, applied to the Fair Work Commission to terminate the Get Wines Direct (Warehousing/Tasting Room) Collective Agreement. The application was made under section 244 of the Fair Work Act 2009, on the grounds that the agreement was no longer in operation and had not been used for a period of more than six months. The applicant contended that the agreement was no longer relevant and that terminating it would facilitate the operation of the business. The Australian Council of Trade Unions intervened in the proceedings, opposing the application on the grounds that the agreement was still in force and effect and that terminating it would have adverse consequences for the employees.

The legal issues before the court were whether the collective agreement had effectively ceased to operate and whether the application was made in good faith and on proper grounds. The court had to determine if the agreement had been inoperative for a period of more than six months, as required by section 244(1)(b) of the Fair Work Act. The court also had to consider if the application was made for a proper purpose and whether there were any other factors that should be taken into account in deciding whether to terminate the agreement.

In delivering the decision, the commission found that the agreement had not been used or relied upon for a period of more than six months and that the application was made in good faith and on proper grounds. The commission noted that the agreement was no longer in operation and that terminating it would facilitate the operation of the business. The commission also considered the potential adverse consequences for the employees but found that these were outweighed by the benefits of terminating the agreement. The commission concluded that the application should be granted and ordered the termination of the Get Wines Direct (Warehousing/Tasting Room) Collective Agreement.

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