Application by SKILLED Group Limited

[2016] FWCA 92

[2016] FWCA 92

FAIR WORK COMMISSION

DECISION

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

Application by SKILLED Group Limited
(AG2015/7108)

SKILLED GROUP CITIC PACIFIC MING MANAGEMENT PTY LTD OPERATIONS AGREEMENT 2010

Labour Hire Industry
DEPUTY PRESIDENT BULL	SYDNEY, 6 JANUARY 2016

Application for termination of the SKILLED Group CITIC Pacific Mining Management Pty Ltd Operations Agreement 2010

[1] An application was made by SKILLED Group limited (the applicant) under s. 225 of the Fair Work Act 2009 (the Act) to terminate the SKILLED Group CITIC Pacific Mining Management Pty Ltd Operations Agreement 2010 (the Agreement).

Background

[2] The Agreement was approved by the Fair Work Commission on 5 May 2010 to operate from 12 May 2010 with a nominal expiry date of 5 May 2014.

[3] The Agreement currently applies to all employees who are employed by the applicant in or in connection with the mining, processing and export of iron ore, iron pellets and other related products at sites operated by CITIC Pacific Mining Management Pty Ltd in Australia, and who are appointed to positions in the classifications within the Agreement (these include electricians, tradesman and operators). At the time of approval, there were 5 employees covered by the Agreement.

[4] At 2.1 of the employer’s Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date (F24C), the applicant submitted that there are no employees covered by the Agreement and there are no circumstances where any employees will be covered by the Agreement in the future. The Commission wrote to the applicant on 4 January 2016 requesting the applicant provide further information in this regard.

[5] The applicant submitted that the Agreement was a client specific agreement based on a commercial contract to supply labour to CITIC Pacific. The applicant no longer supplies labour to CITIC Pacific and does not intend to do so in the future. Therefore, on this basis, the applicant no longer engages employees under the Agreement, and as such no employees are covered by the Agreement.

Relevant legislation

[6] Sections 225 and 226 of the Act 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”

Consideration

[7] The applicant, being the employer covered by the Agreement, has the necessary standing to bring the application under s.225(b) of the Act. The Agreement has passed its nominal expiry date.

[8] Section 226 provides when the Commission must terminate an enterprise agreement; that is if it not contrary to the public interest to do so, and that it is appropriate to terminate the agreement having regard to the views of the employer and the employees covered by the agreement.

[9] The Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd 1 at paragraph [129] noted that the public interest approach under s.226(a) requires a consideration of whether termination of the agreement is not contrary to the public interest. As stated by the applicant, the Agreement which is the subject of this application for termination no longer covers any employees and due to the nature of the Agreement being client specific, is now redundant as the applicant no longer supplies labour to that client. On this basis, the termination of the Agreement would not be contrary to the public interest.

[10] With respect to the views of parties, the applicant is the employer. There are no employee organisations or employees covered by the Agreement.

Conclusion

[11] For the reasons outlined, I am satisfied that the requirements under s.225 and 226 of the Act have been met, and that it is not contrary to the public interest to terminate the Agreement.

[12] Accordingly, an Order [PR575882] to this effect will be issued ordering that the Agreement be terminated with effect from the date of this decision.

DEPUTY PRESIDENT

 1   [2015] FWCFB 540

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