Winc Australia Pty Ltd T/A Winc

[2022] FWCA 3477

[2022] FWCA 3477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Winc Australia Pty Ltd T/A Winc

(AG2022/3678)

Staples Australia Pty Ltd Campbell Street and Sunderland St Distribution Centres, Hobart Enterprise Partnership Agreement: 2015

Storage services
COMMISSIONER CIRKOVIC	MELBOURNE, 7 OCTOBER 2022

Application for termination of the Staples Australia Pty Ltd Campbell Street and Sunderland St Distribution Centres, Hobart Enterprise Partnership Agreement: 2015

1. Winc Australia Pty Ltd has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Staples Australia Pty Ltd Campbell Street and Sunderland Street Distribution Centres, Hobart Enterprise Partnership Agreement: 2015 (the Agreement). The Agreement has passed its nominal expiry date of 30 June 2017 and the Applicant is the employer covered by the Agreement.

1. Section 225 of the Act 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.”

1. Section 226 of the 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.”

1. The Applicant filed a Form F24C declaration dated 1 September 2022 by Mr Brock Woods, National Human Resources Manager, which declared that there are employees still covered by the Agreement. I note the remaining employees covered were also bargaining representatives during the approval process for the Agreement.

1. On 5 September 2022, my Chambers issued Directions to the Applicant to serve a copy of the F24B Application, F24C Statutory Declaration, any other material provided to the Commission, and the Directions, on any employee covered by the Agreement. Employees were then given until 5:00PM on 19 September 2022 to respond to the application. The employees did not provide any submissions in relation to the termination.

1. Materials provided to the Commission and the Form F24C declaration by the employer indicated that “Employees are in support and have voted in favour of the termination of the enterprise agreement. Termination of the agreement would have no negative effect on the employer or any of the employees covered by the agreement. Once termination of the agreement is approved, employees will be covered by the modern award, Storage Services and Wholesale Award 2020.

1. Based on the material contained in the declaration of Mr Woods filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

1. The termination is effective from today.

COMMISSIONER

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