The Trustee for THE GC FALLON FAMILY TRUST T/A Ray White Hervey Bay

[2019] FWCA 536

[2019] FWCA 536

FAIR WORK COMMISSION

DECISION

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

The Trustee for THE GC FALLON FAMILY TRUST T/A Ray White Hervey Bay
(AG2018/6343)

RAY WHITE HERVEY BAY EMPLOYEE COLLECTIVE AGREEMENT 2009

Real estate industry
COMMISSIONER SPENCER	BRISBANE, 1 FEBRUARY 2019

Application for termination of the Ray White Hervey Bay Employee Collective Agreement 2009.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by The Trustee for THE GC FALLON FAMILY TRUST T/A Ray White Hervey Bay (the Applicant) to terminate the Ray White Hervey Bay Employee Collective Agreement 2009 (the Agreement).

[2] The Agreement is a collective agreement-based instrument, and has passed its nominal expiry date.

[3] Further, ss.225 and 226 of the Act relevantly provide:

“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.

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.”

[4] There are no employee organisations covered by the Agreement.

[5] Mr Glenn Fallon, Owner and Director for the Applicant, filed a Statutory Declaration in support of the Application. Mr Fallon stated that termination of the Agreement is appropriate, as it operates in a different legislative context as to when it was made, and that having the employees covered by the relevant Modern Awards would allow for greater clarity, consistency, and compliance with modern industrial standards. In his Statutory Declaration, he provided some information as to consultation with the employees, and stated that the employees and Applicant Employer do not intend to bargain for a replacement agreement.

[6] Directions were issued, requiring that the Applicant provide further information addressing s.226 of the Act.

[7] Further submissions were filed by the Applicant in response to these Directions.

[8] The Applicant’s submissions and Affidavits confirmed that:

•  Termination of the Agreement is not contrary to the public interest, as its continued operation is challenging both due to its age and changes in legislation that has occurred since its implementation. Application of the relevant Modern Awards would allow for greater consistency, clarity, and avoid application of the outdated termination contained in the Agreement which has the potential to cause confusion regarding entitlements and employment conditions;

•  Following termination of the Agreement, the employees will be covered by the Real Estate Industry Award 2010 (the Real Estate Award), or where applicable, the Clerks—Private Sector Award 2010 (the Clerks Award);

•  The Applicant employs 26 individuals whom would be covered by the Real Estate Award post termination of the Agreement, and one individual to be covered by the Clerks Award;

•  Each employee was provided, by email, a copy of:

•  the Agreement;

•  the application to terminate the Agreement;

•  the Commission’s Directions;

•  the Real Estate Award, and where applicable, the Clerks Award;

•  a copy of the wages applicable under the Awards; and

•  a document providing a comparison between the wages and entitlements applicable under the Agreement and the relevant Awards, tailored to each individual employee.

•  The employees’ views were sought, with two emails sent by the Applicant seeking such feedback. Twenty of the 27 employees provided responses, indicating they agreed with the proposal to terminate the Agreement; and

•  All employees are currently paid at or above the relevant Award rates, and the Applicant has provided undertakings to the employees, that this will not alter following termination of the Agreement.

Undertakings

[9] In the individualised letters sent to employees providing a comparison of wage rates and entitlements applicable under the Agreement and the Awards (that will apply), the Applicant provided an undertaking to the effect that the employees’ current gross weekly wages would remain the same, with unchanged entitlements, following termination of the Agreement.

Conclusion

[10] Taking into account the matters in s.226 of the Act, and in accordance with the above submissions, and the undertakings provided by the Applicant Employer, on the material it is appropriate to terminate the Agreement. The termination will take effect from 1 February 2019.

[11] An Order [PR704494] to that effect will issue together with this Decision.

COMMISSIONER

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