BAE Systems Australia Limited

[2017] FWCA 6191

[2017] FWCA 6191

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

BAE Systems Australia Limited

(AG2017/5476)

BAE Systems Australia Limited- Bankstown Collective Agreement -2014 - 2016

Technical services
COMMISSIONER HAMPTON	ADELAIDE, 24 NOVEMBER 2017

Application for termination of the BAE Systems Australia Limited- Bankstown Collective Agreement -2014 - 2016.

1. This decision concerns an application by BAE Systems Australia Limited originally made pursuant to s.222 of the Fair Work Act 2009 (the Act). The application sought to terminate the BAE Systems Australia Limited- Bankstown Collective Agreement -2014 - 2016.[1] The Agreement is an enterprise agreement made and approved under the Act with a nominal expiry date of 1 July 2016.

1. During the hearing of the matter, it became apparent that the application was intended to be made under s.225 of the Act. In the circumstances, the Commission exercised its discretion pursuant to s.586 of the Act to amend the application accordingly.

1. The Act relevantly provides as follows :

“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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

1. This matter was the subject of a hearing by telephone on 23 November 2017 at which time I heard from Ms Bowden, HR Advisor, who spoke on behalf applicant employer. During the course of the hearing, Ms Bowden explained that the Agreement applied only to a limited number of employees engaged on a particular project and that that project had concluded. Further, the Commission was advised that the applicant employer does not intend to undertake any such similar work in the future.  A statutory declaration confirming these facts was subsequently provided to the Commission

1. The applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act. It is also evident that there are no employees who are presently subject to the Agreement and the Agreement is unlikely to apply to any future employees or have any future utility. There are no employee organisations covered by the Agreement and its termination will have no practical or industrial consequences for any party.

1. I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

1. The termination will take effect from midnight, 24 November 2017.

COMMISSIONER

[1] AE409853.

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<Price code C, AE409853  PR598008>