Adelaide Brighton Cement Ltd

[2021] FWCA 5042

[2021] FWCA 5042

FAIR WORK COMMISSION

DECISION

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

Adelaide Brighton Cement Ltd
(AG2021/6156)

ADELAIDE BRIGHTON CEMENT LTD/AUSTRALIAN MARITIME OFFICERS UNION ACCOLADE II OFFICERS AGREEMENT 2012 MK III

Maritime industry
COMMISSIONER HAMPTON	ADELAIDE, 16 AUGUST 2021

Application for termination of the Adelaide Brighton Cement Ltd/Australian Maritime Officers Union Accolade II Officers Agreement 2012 Mk III.

[1] This decision concerns an application by Adelaide Brighton Cement Ltd (Adelaide Brighton Cement) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Adelaide Brighton Cement Ltd/Australian Maritime Officers Union Accolade II Officers Agreement 2012 Mk III (the Agreement). The Agreement was approved by the Commission on 23 July 2012. 1 The Agreement commenced operation on 30 July 2012 and has a nominal expiry date of 1 June 2016. The Australian Maritime Officers’ Union (AMOU) is also covered by the Agreement.

[2] A hearing by telephone was conducted in this matter on 16 August 2021. At the conclusion of that hearing, I expressed my intention to terminate the Agreement and indicated that I would subsequently provide a written decision.

[3] The FW Act relevantly provides:

“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.”

[4] The application was accompanied by a statutory declaration of Ms Amy Moran, Human Resources Advisor. During the hearing, Adelaide Brighton Cement expanded on the grounds for the application to terminate the Agreement. Those grounds included contentions to the effect of the following:

•  The Agreement passed its nominal expiry date on 1 June 2016;

•  There are no longer employees engaged under the Agreement and there has not been since May 2020;

•  The ship in question (Accollade II) is now crewed though a contractual arrangement with another company, that arrangement was recently renewed, and there is no expectation of insourcing that work in the foreseeable future;

•  Consequently, the Agreement has no work to do; and

•  It would not be contrary to the public interest for the Agreement to be terminated.

[5] Given the status of the Agreement, Adelaide Brighton Cement is entitled to apply for its termination pursuant to s.225 of the FW Act.

[6] In the lead up to the hearing of this matter, directions were issued requiring Adelaide Brighton Cement to serve the application upon the AMOU. The AMOU subsequently notified my Chambers by email that it did not oppose the application given the present circumstances. Mr Jarrod Moran, Senior Industrial Officer of the AMOU confirmed this at the hearing. Given this fact and the import of the statutory declaration of Ms Moran, I am satisfied that all relevant affected parties support, or at least do not oppose, the application.

[7] I accept that a valid application has been made. Having had regard to the material provided with the application and during the hearing, I find that the Agreement has no work to do in the present, or any reasonably foreseeable, circumstances. I am also satisfied that it would not be contrary to the public interest to terminate the Agreement and that it is appropriate in all of the circumstances, including having regard to the views of the employer and the AMOU, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[8] The Agreement is terminated, and the termination will take effect on and from 11:59 pm on 16 August 2021.

COMMISSIONER

 1   [2012] FWAA 6212.

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