Aluminium Scaffolds (Qld) Pty Ltd

[2020] FWCA 3332

[2020] FWCA 3332

FAIR WORK COMMISSION

DECISION

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

Aluminium Scaffolds (Qld) Pty Ltd
(AG2020/1815)

ALUMINIUM SCAFFOLDS (QLD) PTY LTD ENTERPRISE AGREEMENT 2010

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 22 JULY 2020

Application for termination of the Aluminium Scaffolds (Qld) Pty Ltd Enterprise Agreement 2010.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Aluminium Scaffolds (Qld) Pty Ltd (the Applicant) to terminate the Aluminium Scaffolds (Qld) Pty Ltd Enterprise Agreement 2010 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 19 April 2015.

[3] Further, ss.225 and 226 of the FW Act relevantly provide:

“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.”

[4] Mr Thomas Lamb, Director of the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Lamb stated that the Applicant sought the termination of the Agreement on the basis that the existing Agreement is cumbersome and complex. Mr Lamb submitted that employees found it difficult to understand and that the Applicant found it difficult to navigate.

[5] The Applicant submitted that by terminating the Agreement the employer will introduce clear and precise policies and individual employment contracts that will clarify conditions and make it more efficient to administer these conditions.

[6] Mr Lamb stated that the termination of the Agreement would not be contrary to the public interest.

[7] The Applicant submitted that termination of the Agreement will have no effect on their current employment status, salary or conditions of employment. The Applicant said that should the Agreement be terminated, it will be replaced by individual Contracts of Employment. The Applicant submitted that wages paid to employees across all levels have always been higher than the minimum stipulated in the relevant Awards and this will continue, with the individual Contracts of Employment matching the wages currently paid to employees and to be reviewed at least annually and adjusted in accordance with the employee’s productivity, performance, contribution and skill level.

[8] The Applicant provided detailed minutes of three separate meetings that were held with employees, where discussions were held in relation to the termination of the Agreement. Each of these minutes included a list of employees in attendance. The minutes set out that the reasons for terminating the Agreement were discussed in detail with the employees.

[9] The Applicant provided signed declarations from 13 employees stating that a meeting was held with all employees on the 17 June 2020, to discuss the reasons for this and the effect the termination would have on employment conditions. The employees declared that the Applicant gave their assurance that the employees’ employment conditions would not deteriorate as a result. The employees stated that the views of the employees were sought and discussed and all questions from the floor were answered clearly. All 13 employees confirmed their understanding of the reason they wish to terminate the Agreement and the effect this will have on them.

[10] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 22 July 2020.

[11] I Order accordingly.

COMMISSIONER

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