KIWI KIWI INDUSTRIES PTY LTD T/AS KIWI KIWI AND SONS FLOORING AND CFMEU UNION COLLECTIVE AGREEMENT 2020-2022

Application for termination of the Kiwi Kiwi Industries Pty Ltd T/As Kiwi Kiwi and Sons Flooring and CFMEU Union Collective Agreement 2020-2022 after its nominal expiry date - No employees employed or to be employed under the Agreement - Agreement terminated

[1] Mr Paul Kiwi Kiwi as the Director of Kiwi Kiwi Industries Pty Ltd Trading As Kiwi and Sons Flooring ('the Applicant/Employer') made an application pursuant to section 225 of the Fair Work Act 2009 (Cth) ('the Act') to terminate the Kiwi Kiwi Industries Pty Ltd T/As Kiwi Kiwi and Sons Flooring and CFMEU Union Collective Agreement 2020-2022 ('the Agreement').[1] The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides, that an employer covered by an enterprise agreement may apply to the Commission to terminate that agreement after it reaches its nominal expiry date.

"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;

(c) an employee organisation covered by the agreement."

[3] The Applicant is an employer covered by the Agreement. The Agreement passed its nominal expiry date on 31 December 2022.[2] I am satisfied that the Applicant has standing to make the termination of agreement application.

[4] Section 226 of the Act sets out the criteria to be met in an application and when the Commission must terminate an expired enterprise agreement. The provision relevant to the current application is:

"226 Terminating an enterprise agreement after its nominal expiry date

(1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

[5] The material before the Commission included the originating application made by Mr Kiwi Kiwi in his role as the Director of the Applicant business and his accompanying declaration. In that declaration he set out that there are no employees covered or likely to be covered by the Agreement.

[6] On the material before the Commission, the application is made pursuant to section 225 and on the second limb of subsection 226(1) of the Act, being that the FWC is satisfied that the agreement does not, and is not likely to, cover any employees.

[7] The Agreement covers a sole employee, the Applicant, Mr Kiwi Kiwi, in the capacity of Director of the Applicant business. The Agreement also covered, the Construction, Forestry and Maritime Employees Union ('CFMEU/the Union') as an employee organisation.

[8] Directions were issued ('the Directions') to obtain the necessary information as per section 226 from the Applicant, employees, and the Union. They were to file in the Commission as follows:

1. The Employer was required to respond to whether there are any employees currently employed under the Agreement and their views on the proposed termination of the Agreement. In particular, responses to the following questions were raised:

   • 1.1 At point 2.2 in the F24C declaration of the Employer, it is provided that no employees are covered or likely to be covered by the Agreement, in contrast at point 5.3 of the same document it is provided that there is one employee over 45 years of age who is covered by the Agreement. Information was sought on whether there are currently any employees engaged under this Agreement?

   • 1.2 Further, does the Employer intend to engage employees in the future?

   • 1.3 If the Employer does intend to engage employees in the future, whether it is intended for the employees to be covered by the relevant Award or to negotiate for a new Agreement?

     • 1.3.1 If it is proposed to cover employees under the Award please provide a comparison of the applicable entitlements between the Agreement compared to the Award.

     • 1.3.2 If it is intended to negotiate a new Agreement please provide reasons why this Agreement cannot remain in place until a new Agreement is made? This was asked particularly in circumstances where employees may be required to bargain from a point of lower conditions of the Award if the current Agreement is not in place.

2. If question 1.1 was answered in the affirmative (that is that there are employees) then, the Employer, was directed to communicate in writing to each of the employees covered by the Agreement, forwarding the email as set out in the Directions to them and inviting them to correspond by email with chambers to provide their views relevant to s.226 above. The Employer was directed to provide the email for response to employees covered by the Agreement. For employees who didn't have an email, this correspondence was to be placed on the staff notice board in the meal rooms (or another accessible place) with the chambers email contact.

3. If question 1.1 was answered in the affirmative then, the Employer was directed to provide an email to chambers explaining compliance with direction [1].

4. The CFMEU was directed to advise whether it supports or opposes termination of the Agreement, whether they are aware of any employees' views on the termination of this Agreement (if there are employees currently covered by the Agreement), and any other relevant information.

5. If question 1.1 was answered in the affirmative then, Employees covered by the Agreement were requested to provide their views to the application by emailing chambers.spencer.c@fwc.gov.au."

[9] The Directions in accordance with the tests in section 226 provided an opportunity for any employer, employee and the relevantly covered Union (the CFMEU) on behalf of employees covered by the Agreement to file material in response to the application. The Directions sought information on the proposed termination of the Agreement in terms of their views, their circumstances, and the likely effect that the termination of the Agreement would have on them.

[10] The sole employer covered by the Agreement was the Applicant. In those circumstances I am satisfied the only relevant employer was on notice of the application, the supporting declaration, and the Directions. Therefore, it is open to me to proceed on the basis that all of the employers covered by the Agreement either support or do not oppose the application to terminate the Agreement.

[11] Having regard to the email received from the CFMEU in response to the Directions, stating that, "The CFMEU does not wish to be heard on this matter, nor does it oppose the termination of this agreement." I am also satisfied that the CFMEU, as the employee organisation covered by this Agreement, was on notice of the application to terminate the Agreement, had a copy of the application, the supporting declaration, and had a copy of the Directions. Further the Union did not oppose the termination of the Agreement.

[12] In terms of subsection 226(1) of the Act, provided above, paragraph (b) of that subsection provides that the Commission must terminate an enterprise agreement if it is satisfied that the agreement does not, and is not likely to, cover any employee. No employee or the Union sought to express a view or contest Mr Kiwi Kiwi's F24C declaration and his further email response. As such, I find that the Agreement does not and is not likely to cover any employee. This is supported by the Union's response.

[13] Mr Kiwi Kiwi's email confirmed that, "The employee is my myself the director of the company." I am therefore also satisfied that the only purported employee was on notice of the application to terminate the Agreement and had a copy of the application, the supporting declaration and a copy of the Directions. I therefore consider it is open to me to proceed on the basis that there are no employees covered by the Agreement or to be engaged under it and if so, they also (by the response of the of the Union) do not oppose the application to terminate the Agreement.

[14] In accordance with the further considerations in subsection 226(1A), the Commission must terminate an enterprise agreement only if it is satisfied that it is appropriate in all of the circumstances to do so. Subsection 226(5) provides that in deciding whether to terminate an enterprise agreement, the Commission may also have regard to any other relevant matter. The Employer covered by the Agreement has not drawn to my attention to any relevant matters beyond those contained in the application. I am not aware of any other relevant matters that would weigh against terminating the Agreement.

[15] I am satisfied that each of the relevant requirements of section 226 of the Act have been met and it is appropriate in all the circumstances to terminate the Agreement.

[16] Pursuant to section 227 of the Act, the termination of the Agreement will take effect on and from 14 March 2025. An Order [3] to this effect will be issued separately with this decision.

[2] Kiwi Kiwi Industries Pty Ltd T/As Kiwi Kiwi and Sons Flooring and CFMEU Union Collective Agreement 2020-2022 [2021] FWCA 3492 ('Agreement'), [4].

[3] PR785236.

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