Western Truck Group Pty Ltd T/A Western Truck Group
[2022] FWCA 2850
•23 AUGUST 2022
| [2022] FWCA 2850 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Western Truck Group Pty Ltd T/A Western Truck Group
(AG2022/1194)
Volvo Group Australia Retail, Governmental Sales and VMR Enterprise Agreement 2018
| Vehicle industry | |
| DEPUTY PRESIDENT LAKE | BRISBANE, 23 AUGUST 2022 |
Application for termination of an enterprise agreement after its nominal expiry date.
Western Truck Group Pty Ltd T/A Western Truck Group (the Applicant) has made an application for the Fair Work Commission (the Commission) to terminate the Volvo Group Australia Retail, Governmental Sales and VMR Agreement 2018 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).
There are two employers covered by the agreement, including the Applicant. The remaining employer covered by the Agreement is Volvo Group Australia Pty Ltd (VGA) because of a transfer of business.
The Agreement had a nominal expiry date of 30 April 2021.
The Applicant indicated that the Australian Manufacturing Workers’ Union (the AMWU) was an employee organisation covered by the Agreement.
On 28 June 2022, I listed the matter for a directions conference on 6 July 2022.
On 16 May 2022, I received correspondence from David Smith, Assistant National Secretary of AMWU, stating that the union objected to the termination of the agreement on the basis that it had not been consulted about the Applicant’s intention to terminate the agreement.
On 5 July 2022, I received correspondence from the Applicant’s representative, indicating that the parties had reached an agreement. The representative sought a two-week adjournment to allow time to contact its members regarding the Application. The directions conference was re-listed for 21 July 2022.
On 21 July 2022, I received correspondence from the Applicant’s representative advising that the AMWU no longer wished to oppose its client’s application.
This application is to be determined on the papers.
Applicant’s submissions
The Applicant filed and relied on a Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date. No further material was filed.
The Applicant submitted that on or around 1 March 2020, it acquired four Volvo dealership sites from VGA through asset sale agreements (the Acquired Sites). After the asset sale agreements settled, VGA transferred its business and the employment of several VGA employees (Affected Employees) working at the Acquired Sites to the Applicant pursuant to s.311 of the Act.
Subsequent to the transfer of employment, the Agreement continued to apply to twenty Affected Employees working at the Acquired Sites who had become employees of the Applicant.
The Applicant has five dealerships in addition to the Acquired Sites and estimates that approximately 218 employees working at those dealerships are not covered by the Agreement. These employees are employed in accordance with:
(a) The Vehicle Repair, Services and Retail Award 2020;
(b) The Manufacturing and Associated Industries and Occupations Award 2020;
(c) The National Employment Standards (the NES); and
(d) other general terms of employment adopted by the Applicant (referred to as WTG Employee Advantage).
The Applicant submitted that by terminating the Agreement, all Western Truck Group employees would be employed in accordance with the applicable Awards, the NES, and WTG Employee Advantage. Accordingly, the termination of the Agreement will improve business alignment amongst its nine dealerships and would improve overall business efficiency, including for the purposes of payroll.
In addition, the Applicant submitted that the twenty Affected Employees are already covered by WTG Employee Advantage. The Applicant submitted that WTG Employee Advantage retain several benefits of the Agreement and provides more flexibility with wage rate increases and ensures that employees are in line with Award rates and terms that have exceeded the Agreement.
The Applicant confirmed that meetings were held with Affected Employees to discuss terminating the Agreement on 31 May 2021, 1 March 2022 and 2 March 2022. The employees were informed of the practical reasons as to why the Applicant was seeking to terminate the Agreement. The Applicant submitted that all 20 of the employees covered by the Agreement consented to the termination of the Agreement.
The Applicant noted that it had not received any notice to commence bargaining from any employees or employee organisations at the time of filing its application.
The Applicant submitted that for the abovementioned reasons, the termination of the Agreement would not be contrary to public interest.
AMWU’s response
On 21 July 2022, I received correspondence from the Applicant’s representative advising that the AMWU no longer wished to oppose its client’s application. This correspondence was sent with the consent of the AMWU, who were copied in.
Consideration
I am satisfied that on assessment of the materials filed in the Commission, the termination of the Agreement is not contrary to the objects of the Act. I am satisfied that termination of the Agreement will not be contrary to the public interest. The Agreement has passed its nominal expiry date, and there will be no adverse effect on employees if the application is granted.
Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, I order that the Agreement be terminated.
I order that the termination will operate from 23 August 2022.
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