Auswest Timbers Pty Ltd

[2018] FWCA 3791

[2018] FWCA 3791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Auswest Timbers Pty Ltd
(AG2018/1904)

AUSWEST TIMBERS DEAN MILL ENTERPRISE AGREEMENT 2014

Timber and paper products industry
DEPUTY PRESIDENT BINET	PERTH, 26 JUNE 2018

Application for termination of the Auswest Timbers Dean Mill 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 Dean Mill Enterprise Agreement 2014 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 8 August 2016.

[3] The parties to the Agreement are Auswest Timbers Dean Mill (Auswest), and its employees engaged in classifications contained in Clause 7 of the Agreement in connection with the Company’s operations in the south-west land division of Western Australia (Employees).

[4] There are no employee organisations covered by the Agreement.

[5] In support of the Application, Auswest filed a Statutory Declaration by Mr Wally Kluktewicz, Group Corporate Affairs and IR Manager of Auswest (Kluktewicz Declaration) and an outline of submissions.

[6] Those submissions identify the precursor agreements to the Agreement and explain how the scope of the precursor agreements led to a scope clause in the Agreement which, while expressed in broad geographic terms, in fact was intended to apply only to Auswest’s timber mill operations at its Dean Mill site. The purported intended narrow scope of the Agreement is consistent with various clauses of the Agreement such as clause 2(a) which provides that:

“The purpose of entering into this Agreement is to increase the productivity, efficiency and flexibility of the Auswest Timbers Dean Mill operations ...”

[7] According to Mr Kluktewicz, the Dean Mill Site ceased operation on 1 May 2016 and Employees covered by the Agreement who were employed at the Dean Mill Site by Auswest at the time were dismissed and paid all their accrued entitlements. Since 1 May 2016, the Mill has only been used to store timber stock awaiting sale or disposition.

[8] According to Mr Kluktewicz, Auswest has not employed any employees that would have been covered by the Agreement since 1 May 2016, and Auswest have no intention to recommence operations at the Mill in future.

[9] Auswest submit that it is in the public interest to terminate unnecessary and obsolete agreements.

[10] 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.”

[11] 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.”

[12] 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.

[13] Based on the material contained in the statutory declaration filed with the Application, there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied, in accordance with section 226(a) of the FW Act that it is not contrary to the public interest to terminate the agreement.

[14] No opposition to the Application was received for or on behalf of any Employees.

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

[16] The termination will come into effect from 26 June 2018.

DEPUTY PRESIDENT

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