Auswest Timbers Pty Ltd

[2018] FWCA 3793

[2018] FWCA 3793

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Auswest Timbers Pty Ltd

(AG2018/1898)

Auswest Timbers Pemberton Enterprise Agreement 2014

Timber and paper products industry
Deputy President Binet	PERTH, 26 JUNE 2018

Application for termination of the Auswest Timbers Pemberton Enterprise Agreement 2014.

1. Auswest Timbers Pty Ltd (Auswest) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Auswest Timbers Pemberton Enterprise Agreement 2014 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

1. The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 18 September 2016.

1. The parties to the Agreement are Auswest Timber Pty Ltd Pemberton site, employees of Auswest engaged in or connected with Auswest’s Pemberton operations in Western Australia (Employees).

1. The Agreement covers the Australian Workers Union (AWU).

1. Section 225 of the FW Act states:

“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.”

1. Section 226 of the FW Act states:

“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. Mr Kluktewicz has filed a Statutory Declaration (Kluktewicz Declaration), which states that Auswest’s Pemberton operations closed on 22 December 2016 and all employees then covered by the Agreement were made redundant on or before that date.  The outline of submissions filed by Mr Kluktewicz on behalf of Auswest state that Auswest do not propose to employ anyone in the future who would be covered by the Agreement.

1. In its outline of submissions, Auswest submits that the Agreement is unnecessary and obsolete, and that it is in the public interest to terminate unnecessary and obsolete agreements having regard to the objects of Part 2-4 of the FW Act, which include the object of: “a simple, flexible and fair framework” for collective bargaining.

1. The AWU agrees that the Agreement does not currently apply to any employees who are eligible to be a member of the AWU.  The AWU does not object to the termination of the Agreement.

Consideration

1. As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

1. Based on the material contained in the Kluktewicz Declaration filed with the Application, the subsequent materials filed in accordance with the directions issued on 31 May 2018 and in accordance with section 226(a) of the FW Act, there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

1. The AWU support the Application and there are no employees who would be affected if the Agreement is terminated.

1. Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

1. The termination will come into effect from 26 June 2018.

DEPUTY PRESIDENT

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