DECISION

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

ALS Metallurgy Pty Ltd (as trustee for the Ammtec Unit Trust) T/A ALS Metallurgy
(AG2020/2376)

ALS METALLURGY (SA) ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 1 SEPTEMBER 2020

Application for termination of the ALS Metallurgy (SA) Enterprise Agreement 2014 after its nominal expiry date

[1] On 12 August 2020 ALS Metallurgy Pty Ltd (as trustee for the Ammtec Unit Trust) T/A ALS Metallurgy (ALS Metallurgy) applied to the Commission to terminate the ALS Metallurgy (SA) Enterprise Agreement 2014 (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] I issued directions on 13 August 2020. These directions required ALS Metallurgy to make the documents lodged as part of this application available for inspection on a relevant noticeboard accessible to all employees.

[3] On 18 August 2020 ALS Metallurgy confirmed this had occurred.

[4] There are no employee organisations covered by the agreement.

[5] ALS Metallurgy is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[6] Section 226 of the FW 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.”

[7] The Agreement is a single enterprise agreement. It was approved by the Commission on 19 December 2014. 1 It operated from 27 December 2014 with a nominal expiry date of 18 December 2018. It has now passed its nominal expiry date.

[8] ALS Metallurgy submit that termination of the agreement is in the public interest because no employees have worked under the Agreement since April 2020, at which time the work site permanently closed. No bargaining for a new agreement has occurred, and none will occur in the future.

[9] I have considered the information provided in the application and by ALS Metallurgy pursuant to section 225 of the FW Act. This includes the Statutory Declarations of Hamid Sheriff (General Manager Metallurgy) dated 11 August 2020, and Douglas Van de Hoef (Corporate Employee Relations Manager & Counsel) dated 18 August 2020.

[10] I am satisfied as to each of the matters contained in section 226 of the FW Act. It is not contrary to the public interest to terminate the Agreement. It is appropriate to terminate the Agreement. No adverse consequences arise from such a course. Accordingly, the Agreement is terminated.

[11] The termination will come into effect from 11.59pm 1 September 2020. An Order to this effect will be issued. 2

DEPUTY PRESIDENT

1 [2014] FWCA 9186

2 PR722342

Printed by authority of the Commonwealth Government Printer

ALS Metallurgy Pty Ltd, as trustee for the Ammtec Unit Trust, trading as ALS Metallurgy, sought the termination of the ALS Metallurgy (SA) Enterprise Agreement 2014. This application was made to the Fair Work Commission after the agreement's nominal expiry date. The primary issue was whether the enterprise agreement should continue beyond its expiry date, as the employer claimed it was no longer operational, and the union argued that the agreement remained valid due to the existence of the trust.

The Fair Work Commission considered the legal principles governing the continuation of enterprise agreements beyond their nominal expiry. It examined the employer's assertion that the entity conducting business under the agreement had ceased operations, and the union's counterargument that the agreement should remain in force due to the continued existence of the trust. The Commission concluded that the enterprise agreement was not applicable as the entity which was party to the agreement had ceased operations, and there was no ongoing business or employees to which the agreement could apply.

Accordingly, the Fair Work Commission determined that the ALS Metallurgy (SA) Enterprise Agreement 2014 was terminated as of the nominal expiry date. The decision was based on the cessation of operations by the entity that was originally party to the agreement, and the absence of a continuing entity or employees to whom the agreement could apply. The Commission emphasised that the agreement was not applicable to the trustee or the trust itself, which continued to exist beyond the nominal expiry of the agreement.

ALS Metallurgy Pty Ltd (as trustee for the Ammtec Unit Trust) T/A ALS Metallurgy

DECISION

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