BAE Systems Australia Limited T/A BAE Systems Australia

[2019] FWCA 6101

[2019] FWCA 6101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

BAE Systems Australia Limited T/A BAE Systems Australia
(AG2019/2796)

BAE SYSTEMS AUSTRALIA LIMITED-WILLIAMSTOWN MARITIME AGREEMENT 2016-2018

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 20 DECEMBER 2019

Application for termination of the BAE Systems Australia Limited-Williamstown Maritime Agreement 2016-2018.

[1] An application has been made by BAE Systems Australia Limited to terminate the BAE Systems Australia Limited-Williamstown Maritime Agreement 2016-2018 (the Agreement), under s.225 of the Fair Work Act 2009 (the Act).

[2] The Agreement has a nominal expiry date of 22 May 2018.

[3] The matter for determination is whether or not to grant the application to terminate the Agreement.

Background to the application

[4] This application was lodged with the Fair Work Commission (the Commission) on 31 July 2019.

[5] A statutory declaration was made by Ms Victoria Halliday (Legal practitioner for the employer) which accompanied the application. Relevantly, Ms Halliday stated at Q2.1 of the statutory declaration that there are no employees covered by the Agreement. Further, with the competition of the Landing Helicopter Dock Ship Build, the Williamstown shipyard closed in 2016. There have been no employees employed under the scope of the Agreement since the close down of the yard, nor will there be any employees engaged under the Agreement in the future.

[6] There are three employee organisations covered by the Agreement; The Australian Workers’ Union (AWU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU).

[7] On 14 August 2019 my Chambers wrote to the AWU, AMWU and ETU to seek their views on the application. A response was sought by 21 August 2019.

[8] The ETU responded on 14 August 2019 advising they have no objections to the termination of the Agreement. No response from the AWU or AMWU was received.

The law to be applied

[9] Section 225 of the Act provides:

“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.

[10] Section 226 of the Act provides:

“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.”

[11] The application to terminate the Agreement was made by the employer who is covered by the Agreement, consistent with s.225(a) of the Act.

[12] I am satisfied, in accordance with s.226(a) of the Act, that it is not contrary to the public interest to terminate the Agreement. In considering whether it is appropriate to terminate the Agreement, I have considered the views of the employee organisations covered by the Agreement pursuant to s.226(b)(ii) of the Act. There has been no objection to the termination.

[13] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[14] The termination will come into effect from the date of this decision

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE421224  PR711928>