The Trustee For The Gay Family Trust T/A W.R. Gay Pest Control Pty Ltd

[2024] FWCA 1397

[2024] FWCA 1397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

The Trustee For The Gay Family Trust T/A W.R. Gay Pest Control Pty Ltd

(AG2024/965)

W R GAY PEST CONTROL PTY LTD WORKPLACE AGREEMENT 2010

Building services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 22 APRIL 2024

Application for termination of the W.R. Gay Pest Control Pty Ltd Workplace Agreement 2010

1. On 27 March 2024, the trustee for the Gay Family Trust T/A W.R. Gay Pest Control Pty Ltd applied to terminate the W R Gay Pest Control Pty Ltd Workplace Agreement 2010 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act).

1. The Agreement has passed its nominal expiry date of 3 March 2015.

1. The Applicant is the sole employer covered by the Agreement. The Agreement covers employees in the pest control industry as set out in the classifications of the Agreement. There are no employee organisation covered by the Agreement.

1. The application was supported by a statutory declaration of Mr Gay, Director, dated 27 March 2024. Mr Gay declared that there were employees covered by the Agreement.

1. On 28 March 2024, the Commission wrote to the Applicant in the following terms:

The Deputy President requests that the Applicant complete the following:

1.   The Applicant is to send an email to its employees by no later than close of business Wednesday 3 April 2024 in the following terms:

An application has been made by The Trustee For The Gay Family Trust T/A W.R. Gay Pest Control Pty Ltd to terminate the W R Gay Pest Control Pty Ltd Workplace Agreement 2010.

The application will be decided by Deputy President O’Neill of the Fair Work Commission. In deciding whether to terminate the agreement the Deputy President is required to take into account the views of employees covered by the agreement.

If the application to terminate the W R Gay Pest Control Pty Ltd Workplace Agreement 2010 is successful, your minimum employment entitlements will be regulated by the applicable modern award.

If you have any views about the application to terminate the agreement, please advise the Deputy President by email at chambers.o’[email protected] by no later than close of business Wednesday, 10 April 2023.

2.   Following the email being sent, the Applicant is to provide Chambers with a further Statutory Declaration, setting out:

·     the action taken to distribute the above notice;

·     confirmation of the number of employees covered by the Agreement;

·     clarification as to whether there are any employee entitlements in the Agreement that are more beneficial than the relevant modern award; and

·     whether all of the Applicant’s employees who are presently covered by the Agreement will be covered by the Pest Control Industry Award 2020.

·     Further, the Form F24B states that there the agreement is a multi-enterprise agreement and covers 15 employers, please clarify if this is an error as the decision states it is a single-enterprise agreement.

1. Subsequently:

(a)No views were received from any employees.

(a)Mr Gay filed a further Statutory Declaration dated 2 April 2024 declaring that there are currently 15 employees covered under the Agreement and that all employees received notice of this application to terminate the Agreement in accordance with the terms requested via email and via Microsoft Teams. Mr Gay further declares that upon the Agreement’s termination, all employees will be covered by the Pest Control Industry Award (the Award).

(b)Mr Gay further submits that specific allowances in the Agreement are not listed in the Award, however, equivalent monetary remuneration for the allowances will be incorporated into an increased hourly base rate upon the change to the Award and that no loss in wages will occur.

(c)Following further enquiries being made by my chambers, Mr Gay confirmed that the Agreement is a single-enterprise Agreement and covers one employer. An amended Form F24B was forwarded to chambers on 28 March 2024.

Consideration

1. In relation to s.225 of the Act, I am satisfied that the Agreement has passed its nominal expiry date and that the Applicant is entitled to make the application as an employer covered by the Agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amended s.226 of the Act. The amendments took effect from 7 December 2022 and provide as follows:

“226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)   whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. Section 226(1) of the Act requires that the Commission terminate an enterprise agreement that has passed its nominal expiry date if satisfied that any of the three grounds listed have been met. These relate to the continued operation of the agreement being unfair to employees, the agreement being unlikely to cover any employees, or the continued operation of the agreement posing a significant threat to the viability of the business. However, an additional consideration is whether the termination is appropriate. The Commission must terminate an enterprise agreement under s.226(1) only if satisfied that it is appropriate in all the circumstances to do so.[1]

1. I am satisfied that the continued operation of the Agreement would be unfair for the employees covered by it, because they would be better off overall under the Award.

1. In relation to s.226(3), the employer seeks the termination of the Agreement, no employees provided any views in relation to the application and no employee organisations are covered by the Agreement.

1. On the material before the Commission, I am satisfied that none of the criteria in s.226(4) are relevant to this application. Despite the information provided by the Applicant at Q3 of the F24C, the employer has confirmed that the employees will revert to the relevant Award following termination of the Agreement and as such, there has been no bargaining for a proposed new enterprise agreement.

1. Considering that there is no opposition to the application and that its continued operation would be unfair to the employees covered by it, I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.

1. In accordance with s.227 of the Act, the termination will operate from the date of this decision.

DEPUTY PRESIDENT

[1] Certis Security Australia (WA) Pty Limited [2023] FWCA 630 at [17].

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