BIS Industries Limited

[2018] FWCA 3792

[2018] FWCA 3792

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

BIS Industries Limited

(AG2018/2057)

Bis Industries Tronox Workshop Enterprise Agreement 2012

Manufacturing and associated industries
Deputy President Binet	PERTH, 26 JUNE 2018

Application for termination of the Bis Industries Tronox Workshop Enterprise Agreement 2012.

1. Bis Industries Limited (Bis) has applied (Application) for the Bis Industries Tronox Workshop Enterprise Agreement 2012 (Agreement) to be terminated pursuant to section 225 of the Fair Work Act 2009 (FW Act).

1. The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 16 December 2014.

1. The parties to the Agreement are Bis and employees employed by Bis in the classifications set out in clause 18 of the Agreement (Employees).

1. There are no employee organisations covered by the Agreement.

1. In support of the Application, Bis filed a Statutory Declaration by Ms Kathryn Winter, Employee Relations Manager at Bis (Winter Declaration), which states that:

·   The Agreement previously covered Employees working at the Tronox workshop at Muchea in Western Australia.

·   Bis’ contract with Tronox ended in June 2016, when Tronox awarded the contract, under which the work was performed by the Employees, to another service provider.

·   The Employees then employed by Bis were made redundant, demobilised from site and paid all their entitlements where suitable employment could not be found.

·   Since that that time Bis has not secured any work to which the Agreement would apply.

·   Bis no longer employs any person covered by the Agreement.

·   Bis not intend to engage new employees on the terms contained in the Agreement.

·   Bis does not intend to negotiate for a replacement agreement.

1. Section 225 of the FW Act states:

“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.”

1. Section 226 of the FW Act states:

“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.”

1. As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

1. Based on the material contained in the statutory declaration filed with the Application, there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement.  I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

1. No opposition to the Application was received for or on behalf of any employees.

1. Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

1. The termination will come into effect from 26 June 2018.

DEPUTY PRESIDENT

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