Ativo Services Pty Ltd T/A Programmed Industrial Maintenance

[2018] FWCA 6299

[2018] FWCA 6299

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Ativo Services Pty Ltd T/A Programmed Industrial Maintenance

(AG2018/5528)

ATIVO Services Pty Ltd Enterprise Agreement 2016

Manufacturing and associated industries
Deputy President Beaumont	PERTH, 30 November 2018

Application for termination of the Ativo Services Pty Ltd Enterprise Agreement 2016.

1. On 2 October 2018, Ativo Services Pty Ltd T/A Programmed Industrial Maintenance (the Applicant) applied under s 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Ativo Services Pty Ltd Enterprise Agreement 2016 (the Agreement). 

1. Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated under s 222. Section 223 of the Act is as follows:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a)the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b)the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c)the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d)the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

1. The application was initially supported by a statutory declaration from Ms Bethany Milburn, HR Advisor of the Applicant (Ms Milburn).  It declared that there were currently no employees covered by the Agreement, the scope of work that the Agreement covered was now complete, and as a result, employment of all employees to which the Agreement applied had ended.[1] 

2. Further, according to Ms Milburn, it was the case that the Applicant did not propose to perform any new work which would be covered by the Agreement in the future. Additionally, the Applicant did not propose to engage any new employees who would be covered by the Agreement.[2]

1. On 11 October 2018, and 14 November 2018, directions were issued by Chambers to elicit further evidence from the Applicant, submissions regarding the application and the circumstances of the Applicant. 

1. Ms Melina Quinlan, National HR Manager (Ms Quinlan), informed the Commission that the Applicant is primarily engaged in providing maintenance and project services to a large range of industrial customers in the resources and manufacturing sectors.  Ms Quinlan stated that at the time of writing it had ‘1700 employees covered by 25 enterprise agreements … however none of those employees are those who were employed under the Agreement’.[3]

1. In her statutory declaration Ms Quinlan confirmed that the last time an employee had been employed under the Agreement was on 29 September 2016, and that no employees had been employed under the Agreement since that date.[4]  

1. In consideration of the material before me, including the statutory declarations, I am satisfied that the requirements of s 223 have been met. In accordance with s 223, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

[1] Statutory Declaration of Ms Bethany Milburn dated 2 October 2018. 

[2] Statutory Declaration of Ms Bethany Milburn dated 2 October 2018. 

[3] Statutory Declaration of Ms Melina Quinlan dated 29 November 2018. 

[4] Statutory Declaration of Ms Melina Quinlan dated 29 November 2018. 

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