Applied Air Services (Qld) Pty Ltd
[2022] FWCA 10
•5 JANUARY 2022
| [2022] FWCA 10 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.225—Enterprise agreement
Applied Air Services (Qld) Pty Ltd
(AG2021/8810)
Applied Air Services (Qld) Pty Ltd (Scape Student Accommodation) Enterprise Agreement 2016 - 2019
| Manufacturing and associated industries | |
| Commissioner Matheson | SYDNEY, 5 JANUARY 2022 |
Application for termination of the Applied Air Services (Qld) Pty Ltd (Scape Student Accommodation) Enterprise Agreement 2016 - 2019.
On 8 December 2021, Applied Air Services (Qld) Pty Ltd (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Applied Air Services (Qld) Pty Ltd (Scape Student Accommodation) Enterprise Agreement 2016 - 2019 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Initial Form F24C) was filed with the Application. After the Application was made, an error was identified in the Initial Form F24C and the Applicant filed an amended Form F24C (Form F24C).
The Agreement is a single enterprise agreement. It was approved by Commissioner Lee on 24 February 2017.[1]
The nominal expiry date of the Agreement is 31 December 2019.
Legislation
The relevant provisions of the Act are as follows:
“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.”
Consideration – s.225
Is the Applicant an employer covered by the Agreement?
Clause 5.1(a) names Applied Air Services (Qld) Pty Ltd as a party to the Agreement. The Applicant is Applied Air Services (Qld) Pty Ltd and I am satisfied it is the same legal entity.
Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.
Has the Agreement passed its nominal expiry date?
Clause 7.1 of the Agreement provides that the Agreement will nominally expire on 31 December 2019. Having considered the materials before the Commission and clause 7.1 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.
Consideration – s.226
It is declared in the Form F24C that the Agreement covers only those employees of the Applicant who perform mechanical ventilation, electrical and sheetmetal work on projects with a head contract value of more than $20 million. This aligns with the coverage provisions of the Agreement as set out in clauses 6.1 and 3 of the Agreement.
It is declared in the Form F24C that:
· the Applicant has had no employees falling within the Agreement’s coverage for the past two years and nor is it likely to have employees in that group in the foreseeable future; and
· termination of the Agreement will have no effect on the Applicant’s employees.
There are no employee organisations covered by the Agreement.
Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it appropriate to do so having regard to all the circumstances.
Conclusion
Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 5 January 2022. An Order to that effect will be issued in conjunction with this Decision.
COMMISSIONER
[1] [[2017] FWCA 1090].
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