BIS Industries Limited

[2015] FWCA 5350

[2015] FWCA 5350

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

BIS Industries Limited
(AG2015/3471)

BIS INDUSTRIAL LOGISTICS WEST TURNER SYNCLINE CONTRACT ENTERPRISE AGREEMENT 2010

Mining industry
COMMISSIONER WILLIAMS	PERTH, 5 AUGUST 2015

Application for termination of the BIS Industrial Logistics West Turner Syncline Contract Enterprise Agreement 2010.

[1] This decision concerns an application made by BIS Industries Limited (the applicant) for the termination of the BIS Industrial Logistics West Turner Syncline Contract Enterprise Agreement 2010 (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 Mr Edmund De Wet (Mr De Wet) who is the Employee Relations Manager with the applicant.

[6] Mr De Wet explains that the Agreement had a nominal expiry date of 30 December 2013 and that the agreement covered work at West Turner Syncline project for Rio Tinto.

[7] In April 2014 Rio Tinto terminated the commercial contracts with the applicant for this project.

[8] Consequently all employees engaged by the applicant under the Agreement have since been demobilised from all Rio Tinto sites and consequently have either been made redundant or suitable alternative employment has been found for them.

[9] The evidence of the statutory declaration is that the applicant no longer employs any person covered under the Agreement and so the termination of the Agreement cannot be to their disadvantage.

[10] It is submitted that it is highly unlikely that the applicant would be performing work covered by the Agreement for Rio Tinto in the future.

[11] The applicant submits that in the circumstances including that the nominal expiry of the date was more than 19 months ago terminating the Agreement would not be contrary to the public interest.

Consideration

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

[13] 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.

[14] Accordingly, the BIS Industrial Logistics West Turner Syncline Contract Enterprise Agreement 2010 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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