Trustee for Geddie Transport Unit Trust T/A Aceit Transport Solutions Pty Ltd

[2021] FWCA 3108

[2021] FWCA 3108

FAIR WORK COMMISSION

DECISION

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

Trustee for Geddie Transport Unit Trust T/A Aceit Transport Solutions Pty Ltd
(AG2021/5076)

ACEIT TRANSPORT SOLUTIONS PTY LTD BIKE COURIERS COLLECTIVE AGREEMENT 2008

Postal services
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 31 MAY 2021

Application for termination of the Aceit Transport Solutions Pty Ltd Bike Couriers Collective Agreement 2008.

[1] On 11 May 2021 the Trustee for Geddie Transport Unit Trust T/A Aceit Transport Solutions Pty Ltd (Aceit Transport) applied to the Commission to terminate the Aceit Transport Solutions Pty Ltd Bike Couriers Collective Agreement 2008 (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] I issued Directions on 13 May 2021. These Directions required Aceit Transport to make the documents lodged as part of this application available to employees with an interest in the application for inspection, such as by electronic means or on a relevant noticeboard accessible to all employees. Aceit Transport was instructed to provide confirmation that this has occurred, or that there are no employees with an interest in the Directions.

[3] On 17 May 2021 Aceit Transport confirmed that there are no employees covered by the Agreement.

[4] My Directions required in the event that an affected employee sought to oppose the application, or otherwise be heard on it, that advice must have been provided to the Commission and Aceit Transport by close of business on Friday 28 May 2021.

[5] No correspondence was received from anyone purporting to be an affected employee.

[6] The Agreement is a collective agreement as provided by Part 8 of the Workplace Relations Act 1996 (Cth) (WR Act).

[7] The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Provisions Act) deems a collective agreement approved under the WR Act to be a ‘collective agreement-based transitional instrument’. 1

[8] Schedule 3 Item 16 of the Transitional Provisions Actextends subdivision D of Division 7 of Part 2-4 of the FW Act (the division of the Act containing section 225) to include collective agreement-based transitional instruments.

[9] Aceit Transport is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[10] Section 226 of the FW Act provides as follows:

“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.”

[11] The Agreement is a single enterprise agreement. The Commission’s records indicate it commenced operation on 17 June 2009 with a nominal expiry date of “the third anniversary of the date on which it commenced.” 2 It has now passed its nominal expiry date.

[12] The Applicant’s evidence is that there are no employees currently covered by the Agreement and as such the Agreement is no longer applicable.

[13] Aceit Transport submits that termination of the Agreement is not contrary to the public interest because the Agreement is now below the National Employment Standards.

[14] I have considered the information provided in the application pursuant to section 225 of the FW Act. This includes the Statutory Declaration of Kerin Geddie (Administration Manager) dated 11 May 2021. I also take into account there has been no opposition to the application voiced by any purported affected employees.

[15] I am satisfied as to each of the matters contained in section 226 of the FW Act. It is appropriate to terminate the Agreement given the circumstances. Accordingly, the Agreement is terminated.

[16] The termination will come into effect from 11.59pm 31 May 2021. An Order to this effect will be issued in conjunction with this Decision. 3

DEPUTY PRESIDENT

 1 Transitional Provisions Act Schedule 3 Item 2.

 2   Clause 5.1.

 3   PR730299

Printed by authority of the Commonwealth Government Printer

<AC317761  PR730298>