Aus Projects NT Pty Ltd T/A Aus Projects NT Pty Ltd
[2023] FWCA 465
•15 FEBRUARY 2023
| [2023] FWCA 465 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Aus Projects NT Pty Ltd T/A Aus Projects NT Pty Ltd
(AG2022/4337)
Power Projects (NT) Pty Ltd Enterprise Agreement 2018
| Electrical contracting industry | |
| COMMISSIONER RIORDAN | SYDNEY, 15 FEBRUARY 2023 |
Application for termination of the Power Projects (NT) Pty Ltd Enterprise Agreement 2018
Aus Projects NT Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Power Projects (NT) Pty Ltd Enterprise Agreement 2018 (the Agreement).
The Agreement has passed its nominal expiry date.
There are no employee organisations covered by the Agreement.
Section 225 of the Act provides:
“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.”
Section 226 of the Act provides:
“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.”
In support of the application, Mr Tim Cross, General Manager, filed two statutory declarations on Fair Work Commission templates. The first statutory declaration was in support of termination of an agreement after its nominal expiry date, and the second statutory declaration was in support of termination of an enterprise agreement by agreement.
Mr Cross provided that the Agreement had passed its nominal expiry date on 2 April 2022. Mr Cross provided that termination of the Agreement will not be contrary to the public interest because:
“1. No employee will be worse off under a move to an individual agreement.
2. Individual agreements provide more flexibility for the employer and employees.
3. Rights are still protected by the Fair Work Act.
4. The company name and structure has changed and it is now part of the Aboriginal United Services (AUS) group of companies operating in WA and the NT.”
Mr Cross stated that the Applicant had conducted a twelve-week consultation process to ensure every employee understood the proposed changes. He stated that the consultation included written advices, meetings of individual work units, tool box meetings and all employees were invited to contact the CEO, senior mangers, line managers or human resource manger with any concerns or questions.
Mr Cross stated that an independent third party administered a ballot at the end of the twelve-week consultation period. Voting on the termination of the Agreement commenced on 5 September 2022, and Mr Cross stated that of the 81 employees covered by the Agreement, 61 employees cast a valid vote with 52 voting to approve the termination of the Agreement.
Mr Cross stated that the effect of termination of the Agreement would be that the employer and its overall company structure would be streamlined to utilise individual agreements. Mr Cross stated that the individual agreements would provide flexibility to both the employer and its employees, allowing employees to more easily integrate and move through different parts of the organisation without the basis for calculation of entitlements changing. Mr Cross stated this would make it easier for the employer and employees to ensure the correct entitlements were paid.
I conducted a telephone conference in this matter on 26 October 2022, further to which I sought that the Applicant file a further statutory declaration in relation to employees being better off overall under individual agreements.
Further to an extension for filing as sought by the Applicant, the Applicant filed a statutory declaration and annexures addressing these concerns on 15 November 2022.
Mr Cross provided that the Applicant’s staff are paid in excess of rates provided for in the Agreement. Mr Cross annexed a summary document detailing various staff members’ rates under relevant Awards, the Agreement, and what is actually paid by the Applicant, including, in some cases, extra benefits provided to employees. Mr Cross also annexed employees’ employment contracts and an Individual Flexibility Agreement (IFA) in support of this submission.
I relisted the matter for telephone conference on 24 November 2022, further to which I requested that the Applicant provide further information regarding IFAs for apprentices.
The Applicant sought and was granted an extension until the end of January 2023 for filing these further materials. In a statutory declaration of Mr Cross dated 2 February 2023, Mr Cross relevantly provided that he had met with the apprentice and explained:
“(a) each clause of the IFA;
(b) that there was no obligation to enter into an IFA;
(c) that it was entirely his choice to enter into an IFA with the Applicant;
(d) that the main changes were:(i) that a flat rate for each of the four years of his apprenticeship was now stipulated within the proposed amended IFA;
(ii) that also included was a clause that the Applicant would conduct a review of this proposed amended IFA at the completion of each year of the apprenticeship to ensure that the conditions stipulated within the proposed amended IFA were better off overall than the EA at all times.”
Mr Cross stated that he allowed that employee an opportunity to seek independent advice, however, that employee confirmed he wished to enter into the proposed amended IFA which was executed at that meeting. Mr Cross has stated that the Applicant intends to adopt this process for all IFAs it seeks to enter into.
Based on the material contained in the employer’s declarations and the oral submissions made at the telephone conferences, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those identified in s.226(b)(i) and (ii) of the Act, I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement
The termination will operate from 15 February 2023.
An order giving effect to this decision is separately issued in PR750635.
COMMISSIONER
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