Ausenco Operations Pty Ltd T/A Ausenco

[2016] FWCA 390

[2016] FWCA 390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Ausenco Operations Pty Ltd T/A Ausenco
(AG2015/7584)

AUSENCO QUEENSLAND COAL OPERATIONS ENTERPRISE AGREEMENT 2012

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 19 JANUARY 2016

Application for termination of the Ausenco Queensland Coal Operations Enterprise Agreement 2012.

[1] Ausenco Operations Pty Ltd (Ausenco) applies for approval of the termination of an enterprise agreement known as the Ausenco Queensland Coal Operations Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.222 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] The Agreement was approved on 13 June 2012 and commenced operation on 20 June 2012. The nominal expiry date of the Agreement is 13 June 2016.

CONSIDERATION

[3] Ausenco, being a person covered by the Agreement, applies for its termination pursuant to s.222 of the Act. The application was accompanied by the required declarations.

[4] The Commission must terminate the Agreement if those matters in s.223 of the Act are satisfied 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.”

[5] The originating application was accompanied by a Statutory Declaration of Ms Kylie Sowden, Senior Manager People & Performance of Ausenco. Ms Sowden declares that Ausenco provided coal project operations services under contract at the Isaac Plains Coal Mine in the Bowen Basin in Queensland and did not provide such services for any other mine site in Queensland. Ausenco ceased to provide services at the Isaac Plains Coal Mine on 24 February 2015. All employees previously covered by the Agreement have been made redundant or redeployed into other areas of Ausenco’s enterprise. There are no employees currently covered by the Agreement.

[6] Ausenco has referred me to two decision of the Commission dealing with applications to terminate an enterprise agreement in circumstances where there are no employees covered by the Agreement to agree to the termination. 1

[7] On the basis of the originating application and accompanying statements in this matter, I am satisfied that each of the requirements of ss.220(2) and 221(2) as are relevant to this application for termination have been met. I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination. I note that there are no employee organisations covered by the Agreement

[8] The termination of the Agreement is approved. The termination will operate from 19 January 2016.

DEPUTY PRESIDENT

 1   Application by Polyseal Waterproofing Australia Pty Limited [2013] FWCA 7717; Application by Metro Media Services Pty Ltd [2014] FWCA 4640.

Printed by authority of the Commonwealth Government Printer

<Price code A, AE894707  PR576268>