Berkeley Challenge Pty Ltd T/A Berkeley Challenge

[2017] FWCA 6162

[2017] FWCA 6162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Berkeley Challenge Pty Ltd T/A Berkeley Challenge
(AG2017/5301)

SPOTLESS OPEN SPACE MAINTENANCE ENTERPRISE AGREEMENT 2011

(ODN AG2011/767) [AE885735]

Gardening services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 28 NOVEMBER 2017

Application for termination of the Spotless Open Space Maintenance Enterprise Agreement 2011.

[1] Berkeley Challenge Pty Ltd has applied under s.225 of the Fair Work Act 2009 (Act) to terminate the Spotless Open Space Maintenance Enterprise Agreement 2011 (Agreement). The Agreement is expressed to cover the company and its employees who are covered by the classifications of work described in clause 1.3 of the Agreement and the Australian Workers’ Union (AWU). The Agreement has passed its nominal expiry date.

[2] 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.”

[3] 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.”

[4] In correspondence to my chambers of 14 November 2017, the AWU advised that it does not oppose the application. The company’s statutory declaration filed in support of the application states that there are no employees covered by the Agreement.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations that might militate against termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I do so.

[6] The termination will operate from 28 November 2017.

DEPUTY PRESIDENT

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