Transpacific Industries Pty Ltd

[2015] FWCA 4055

[2015] FWCA 4055

FAIR WORK COMMISSION

DECISION

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

Transpacific Industries Pty Ltd
(AG2015/2747)

TRANSPACIFIC WASTE MANAGEMENT (LANDFILLS SOUTH AUSTRALIA - ADMINISTRATIVE EMPLOYEES) ENTERPRISE AGREEMENT 2010

Clerical industry
COMMISSIONER HAMPTON	ADELAIDE, 17 JUNE 2015

Application for termination of the Transpacific Waste Management (Landfills South Australia - Administrative Employees) Enterprise Agreement 2010.

[1] This decision concerns an application by Transpacific Industries Pty Ltd pursuant to s 225 of the Fair Work Act 2009 (the Act). The application seeks to terminate the Transpacific Waste Management (Landfills South Australia - Administrative Employees) Enterprise Agreement 2010. 1The Agreement is an enterprise agreement made and approved under the Act with a nominal expiry date of 1 July 2014.

[2] The Act relevantly provides 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 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.”

[3] This matter was the subject of a hearing on 16 July 2015 at which time I heard from Mr Brady, HR Business Partner and Mr Jenner, Regional Manager, on behalf of the applicant employer.

[4] The applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act. It is also evident that the employees who are presently subject to the Agreement do not oppose its termination. 2 If the application is granted, the employment of those employees will fall back to the coverage and application of the relevant modern award; being the Clerks - Private Sector Award 2010.

[5] The application is being made in the context of organisational changes which have led to a circumstance whereby the three Agreement-covered employees are now part of a larger employee group that are not employed on that basis.

[6] There are some classification levels where the adjusted Agreement base rates are higher than the present modern award rate and redundancy benefits under the award are less than those in the Agreement. The employer has provided an undertaking to its staff that no employee’s rate of pay will be reduced and that they would be no worse off as a result of the termination of the Agreement. Indeed, contracts have been provided to each of the relevant employees containing an increased rate, an ex-gratia payment and other arrangements. Further, the employer has provided appropriate written undertakings to the Commission in relation to pay rates and the maintenance of the more generous redundancy provisions of the Agreement. I have accepted the undertakings and dealt with this application on that basis.

[7] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[8] The termination will take effect on and from 30 June 2015.

 1   AE8827237 December 2010.

 2   A notice of listing was also provided to all employees by the FWC and this invited employees with concerns to contact the Commission. No concerns have been raised.

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<Price code A, AE882723  PR568402>