Balec Pty Ltd

[2019] FWCA 5959

[2019] FWCA 5959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Balec Pty Ltd
(AG2019/2641)

BALEC PTY LTD AND ETU (CEPU ELECTRICAL DIVISION) ESSO OFFSHORE AND ONSHORE SITES MAINTENANCE AGREEMENT 2013

Electrical contracting industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 27 AUGUST 2019

Application for termination of the Balec Pty Ltd and ETU (CEPU Electrical Division) Esso Offshore and Onshore sites Maintenance Agreement 2013.

[1] Balec Pty Ltd (Applicant) has applied under s.225 of the Fair Work Act 2009 (Act) to terminate the Balec Pty Ltd and ETU (CEPU Electrical Division) Esso Offshore and Onshore Sites Maintenance Agreement 2013 (Agreement). The Agreement is expressed to cover the Applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU Electrical Division) (ETU) and employees who are engaged to perform work on services, maintenance, modification and shutdown work on Esso Offshore Production Platforms within Bass Strait Victoria. 1 The Agreement has passed its nominal expiry date.

[2] There are no employees covered by the Agreement. I issued directions on 24 July 2019 in which the ETU was invited to advise the Fair Work Commission (Commission) if it opposes the application. No advice was received by the Commission.

[3] In the circumstances, I have decided to deal with the application on the papers without conducting a hearing.

Statutory Framework

[4] Section 225 of the Act provides:

“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.”

[5] Section 226 of the Act provides:

“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.”

Consideration

[6] The Agreement reached its nominal expiry date on 30 April 2015. 2 The Applicant has standing to make the application because, pursuant to s.225(a) of the Act, it is the employer that is covered by the Agreement. Accordingly, the jurisdictional prerequisites for the making of an application under s.225 of the Act are satisfied.

[7] The Applicant submitted that it ceased trading on 31 October 2018 on account of the retirement of one of its Directors. It says that it is in the process of being dissolved and liquidators, Bent & Cougle, were appointed on 13 June 2019. In support of this submission, the Applicant relied upon an ASIC extract, which discloses that the Applicant is in external administration. 3

[8] The statutory declaration of Clement Glenane, 4 Operations Manager for the Applicant, states that there are no employees covered by the Agreement. As earlier noted, the position of the ETU in respect of the application was sought by the Commission. No submissions were made by the ETU in relation to its views, its circumstances or the likely effect that the termination would have upon it.

[9] There is nothing before me which raises public interest considerations that might militate against termination of the Agreement.

[10] On the material filed with the Commission:

(a) I am satisfied that termination of the Agreement is not contrary to the public interest pursuant to s.226(a) of the Act; and
(b) I consider that it is appropriate to terminate the Agreement, taking into account all of the circumstances including the matters set out at s.226(b) of the Act.

Conclusion

[11] Given my findings in respect of ss. 225 and 226(a) and (b) of the Act, I must terminate the Agreement. The termination will operate from 27 August 2019.

DEPUTY PRESIDENT

 1   Agreement Clause 3.

 2   Agreement Clause 4; [2013] FWCA 6846 at [4].

 3   Extract from ASIC database dated 21 August 2019.

 4   Form F24C statutory declaration of Clement Glenane dated 17 July 2019.

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