DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Mackenzie Waugh; Daniel McDonald
(AG2018/6133)

MERIVALE EMPLOYEE COLLECTIVE AGREEMENT 2007

Application for termination of the Merivale Employee Collective Agreement 2007.

[1] This is an application, filed by Mr M Waugh and Mr D McDonald (the ‘applicants’), two employees of M.R.V.L Investments Pty Ltd as the Trustee for Hemmes Administration (‘Merivale’), pursuant to Item 16, Sch 3 of the Fair Work Transitional Provisions and Consequential Amendments Act 2009 (the ‘Transitional Act’) and s 225 of the Fair Work Act 2009 (the ‘Act’) to terminate the Merivale Employee Collective Agreement 2007 [AC320726] (the ‘Merivale Agreement’). Relevantly, the Merivale Agreement passed its nominal expiry date of 21 December 2012.

[2] The application was filed on 2 November 2018 and was accompanied by statutory declarations of Mr Daniel McDonald and Mr Mackenzie Fitzgerald Waugh in which the applicants set out the reasons for the application and the evidence in support of the termination of the Merivale Agreement.

[3] Merivale had agreed to the termination of the Agreement, but requested a prospective date to allow it to put in place the necessary system changes effecting numerous workplaces and almost 3,000 employees. Ultimately, agreement was reached that the Agreement’s termination take effect on 4 March 2019.

[4] The Commission also issued directions on 14 November 2018, in order to be satisfied that the views of the employees are taken into account, pursuant to s 226(b)(i). These directions were:

1. The employer is to provide a copy of these directions to all its employees covered by the Merivale Employee Collective Agreement 2007 (‘the Agreement’) by close of business on 21 November 2018.

2. A copy of this direction is also to be displayed in a prominent place (not in public service areas) in each of the workplaces or venues covered by the Agreement. Where the workplace is large or contains a number of different venues, this direction should be displayed in multiple locations as appropriate. The employer is to provide to the Commission a statement concerning its compliance with this direction by close of business on 21 November 2018.

3. If any party opposes the application, advice should be given to my chambers, in writing, by close of business on 5 December 2018. Such advice should be sent to chambers.sams.dp@fwc.gov.au.

4. If no objection is received in chambers by the time identified in paragraph 3, the Commission will consider whether the application can be determined on the papers or otherwise require a hearing.

[5] Relevantly, the Commission received advice from two employees (in addition to the applicants) supporting the termination of the Agreement and from one employee opposing the termination. I am satisfied that employees have been advised of the termination of the Agreement, its impact on them and the majority of them support the termination of the Agreement.

[6] The relevant provisions of the Act governing applications of this kind are set out 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.’

[7] Having considered the applicants’ submissions and evidence and the views of the employer and United Voice, and upon reviewing the application, I am satisfied that all of the requirements of the Act, in particular, ss 225 to 227 of the Act have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Merivale Agreement. Accordingly, the Merivale Employee Collective Agreement 2007 [AC320726] is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from 4 March 2019.

DEPUTY PRESIDENT

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<AC320726  PR703948>