The Trustees for Byron Bonney Family Trust No. 1 T/A Lloyds North Pty Ltd

[2014] FWCA 1610

[2014] FWCA 1610

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

The Trustees for Byron Bonney Family Trust No. 1 T/A Lloyds North Pty Ltd
(AG2013/11548)

LLOYDS NORTH PTY LTD SMART FIBRE BELL BAY OPERATIONS AGREEMENT 2008-2013

Tasmania
COMMISSIONER LEE	MELBOURNE, 7 MARCH 2014

Application for termination of the Lloyds North Pty Ltd Smart Fibre Bell Bay Operations Agreement 2008-2013.

[1] This matter involves an application made by The Trustees for Byron Bonney Family Trust No.1 T/A Lloyds North Pty Ltd (the Applicant) for termination of the Lloyds North Pty Ltd Smart Fibre Bell Bar Operations Agreement 2008-2013 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the FW Act) and Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] The agreement is a collective agreement-based transitional instrument and has a nominal expiry date of 2 October 2013.

[3] Item 16 of Schedule 3 to the Transitional Act provides;

“16 Collective agreement-based transitional instruments: termination by FWA

(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.”

[4] Subdivision D of Division 7 of Part 2-4 of the Act, at sections 225 - 227, states;

“Subdivision D—Termination of enterprise agreements after nominal expiry date

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.

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] The Agreement has passed its nominal expiry date. The employer covered by the Agreement has made and is entitled to make application to the Fair Work Commission to terminate the agreement.

[6] The application was lodged on 22 November 2013. On 28 January 2014, I wrote to the Applicant seeking further information with regard to the requirements of s.226 of the Act. I asked that this information be provided to me in the form of a statutory declaration.

[7] On 11 February 2014, I received a statutory declaration, declared by Cheryl Sutcliff, Human Resources Manager for the Applicant stated that the Applicant no longer performs work at the site covered by the Agreement and no longer has any employees who are covered by the Agreement.

[8] The application made does not note any employee organisations covered by the Agreement. The text of the Agreement does not evidence an employee organisation is covered by its terms.

[9] Given the above, I am satisfied, in accordance with s. 226(a) of the Act, that it is not contrary to the public interest to terminate the agreement. I am also satisfied, in accordance with s. 226(b) that it is appropriate to terminate the agreement having regard to the circumstances of the matter. I am therefore required by s.226 of the Act to terminate the agreement.

[10] The termination of the agreement shall operate from the date of this decision.

COMMISSIONER

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