BIS Industries Limited

[2015] FWCA 5659

[2015] FWCA 5659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

BIS Industries Limited
(AG2015/4237)

BIS INDUSTRIES LIMITED NKS MATERIALS HANDLING CONTRACT ENTERPRISE AGREEMENT 2011

Road transport industry
COMMISSIONER WILLIAMS	PERTH, 18 AUGUST 2015

Application for termination of the BIS Industries Limited NKS Materials Handling Contract Enterprise Agreement 2011.

[1] This decision concerns an application made by BIS Industries Limited (the applicant) for the termination of the BIS Industries Limited NKS Materials Handling Contract Enterprise Agreement 2011 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The applicant has provided in support of its application a statutory declaration from Ms Tania Sidoruk (Ms Sidoruk) who is an Employee Relations Adviser with the applicant.

[6] Ms Sidoruk’s explains that the Agreement had a nominal expiry date of 1 August 2014 and that the Agreement covered work at the Kalgoorlie Nickel Smelter site for BHP Billiton (BHPB).

[7] On April 2013 BHPB advised the applicant that they no longer required them to perform any work on their sites and terminated all commercial labour contracts with the applicant. Consequently all employees engaged by the applicant under the Agreement have since been demobilised from all BHPB sites and consequently have either been made redundant or suitable alternative employment has been found for them.

[8] The evidence of the statutory declaration is that the applicant no longer employs any person covered under the Agreement.

[9] It is submitted it is unlikely that the applicant would be performing work covered by the Agreement for BHPB at any time in the future.

[10] The applicant submits that in the circumstances including that the nominal expiry of the date was more than 12 months ago terminating the Agreement would not be contrary to the public interest.

Consideration

[11] I am satisfied that termination of the Agreement is not contrary to the public interest.

[12] Taking into account the views of the employer and noting that there are no employees covered by the Agreement I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[13] Accordingly, the BIS Industries Limited NKS Materials Handling Contract Enterprise Agreement 2011 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

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