Application by Maersk Crewing Australia Pty Ltd
[2023] FWCA 1660
•26 JUNE 2023
| [2023] FWCA 1660 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Application by Maersk Crewing Australia Pty Ltd
(AG2023/1328)
| Maritime industry | |
| DEPUTY PRESIDENT BINET | PERTH, 26 JUNE 2023 |
Application for termination of the Maersk Crewing Australia Pty Ltd Offshore Oil and Gas Industry (Integrated Ratings, Cooks, Caterersand Seafarers) Enterprise Agreement 2018
On 9 May 2023, Maersk Crewing Australia Pty Ltd (MCA) made an application for the termination of the Maersk Crewing Australia Pty Ltd Maritime Offshore Oil and Gas Industry (Integrated Ratings, Cooks, Caterers and Seafarers) Enterprise Agreement 2018 (Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (FW Act).
The Agreement was approved by Commissioner Lee pursuant to section 185 of the FW Act, on 17 May 2018 and commenced operation on 24 May 2018. The Agreement has a nominal expiry date of 16 May 2022.
The parties to the Agreement are MCA and employees of MCA employed in the classifications of Chief integrated Rating, Integrated Rating, Chief Cook, Cook, Chief Caterer, Caterer, and Steward (Employees).
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) are covered by the Agreement. The CFMMEU were invited by my Chambers to provide their views with respect to the Application.
Legislative provisions
Sections 225, 226 and 227 of the FW Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) provide that:
“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 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:
(a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(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.
(2) This subsection covers a termination of the employment of an employee:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(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);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC
must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to
any other relevant matter.
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.”
Consideration
The Application was made by MCA in its capacity as an employer covered by the Agreement. I am satisfied that MCA have standing to make the Application.
The Application was accompanied by a F24C Declaration by Ms Tracey Ram, the Labour Relations Manager for MCA (Ms Ram). Ms Ram declared that as at 26 April 2023, no employees were employed under the Agreement due to redundancies:
‘As at 26 April 2023, the 14 employees who were employed under the Agreement had their employment terminated by redundancy (13 voluntary and 1 involuntary redundancies).’
In addition, Ms Ram states that the termination of the Agreement, if granted:
‘...would not adversely affect the bargaining position of any employees as the Agreement does not cover any employees, now, or, will do so in the future.’
In support of the Application, MCA attached a statutory declaration by Mr David Kearney, Managing Director of MCA (Mr Kearney). Mr Kearney states that MCA has no contractual arrangement to supply labour to Maersk Supply Service Pty Ltd for the employment classifications of the Employees specified above. Mr Kearney further states that MCA will not offer crewing agency services:
‘...in the future for the supply of the above-mentioned positions to Maersk Supply Service Pty Ltd or any other company for at least 5 years and beyond’
I am therefore satisfied for the purposes of s. 226(1) that the Agreement does not, and is not likely to, cover any employees.
In deciding whether to terminate the Agreement I have taken into account that on 31 May 2023, Luke Edmonds (Mr Edmonds), a Legal Officer for the CFMMEU’s Maritime Union of Australia Division (MUA), wrote the following email to Chambers:
‘I confirm we do not seek to be heard on this termination application and are content for the matter to be determined on the papers.’
I am satisfied that none of the criteria in s.226(4) apply and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s.226(5)).
Having regard to s. 226(1A) of the FW Act, I am satisfied that it is appropriate in all the circumstances to terminate the agreement. It follows that I must terminate the Agreement.
The termination will operate from the date of this decision (s. 227). An order to this effect will be issued with this decision.[1]
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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[1] PR763578.
Printed by authority of the Commonwealth Government Printer
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