Australian Naval Infrastructure Pty Ltd

[2018] FWCA 5925

[2018] FWCA 5925

The attached document replaces the document previously issued with the above code on 24 September 2018.

The correct title of the Agreement is “South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014”.

Associate to Commissioner Platt

Dated 24 September 2018

[2018] FWCA 5925

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222—Enterprise agreement

Australian Naval Infrastructure Pty Ltd

(AG2018/4871)

South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014

State and Territory government administration
Commissioner Platt	ADELAIDE, 24 SEPTEMBER 2018

Application for termination of the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014.

1. On 31 August 2018, Australian Naval Infrastructure Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014 (the State Agreement).

1. The State Agreement at Clause 3.2.5 applies in conjunction with the SA Public Sector Salaried Employees Interim Award (the State Award).

1. The State Agreement and State Award are copied state instruments by virtue of s.768BY of the Act.

1. The application seeks to terminate the copied state instruments in so far as they apply to the Australian Naval Infrastructure Pty Ltd.

Applicable Law

1. Section 768AY of the Act provides:

Termination in limited circumstances

(1)   A copied State instrument for a transferring employee cannot be terminated except under items 22, 23, 24, 25 and 26 of Schedule 3A to the Transitional Act (which deal with termination of State employment agreements) as those items have effect because of section 768BY.

(2)   A copied State instrument for a transferring employee that has been terminated ceases to operate and can never operate again.

Note: A copied State instrument that does not operate cannot cover a person (see subsection 768AN(6)).

1. Section 23 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) provides:

Collective Division 2B State employment agreements: termination by the FWC

Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.

1. As a result of s.768AY of the Act and s.23 of the Transitional Act the Employer must satisfy the requirements set out in s.225 and s.226 of the Act.

1. Section 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.

1. On 5 September 2018 Directions were issued advising that the application had been received and invited any party wishing to be heard to contact the Commission on or before 19 September 2018. Copies of the Directions were provided to the Community and Public Sector Union (CPSU) (an organisation bound by the Agreement) and the Employer was required to provide a copy of the Directions to all employees covered by the Agreement.

1. On 5 September 2018, the Employer confirmed that each employee covered by the Agreement had been given a copy of the Directions and Notice of Listing.

1. No objections were received by my Chambers.

1. The CPSU were copied into all correspondence between the Commission and the Employer and they did not express any views in relation to the application.

1. Based on the material that is before me, including the Statutory Declaration of Sally Anne McLennan (General Counsel and Company Secretary) of the Employer, and that I have not received any advice from any person or party opposing the application, I am satisfied that the requirements of s.225 and s.226 of the Act have been met.

1. In accordance with s.227 of the Act, the termination of the Agreement will come into effect on the date of this decision.

COMMISSIONER

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