Broad Group Holdings Pty Ltd

[2017] FWCA 4214

[2017] FWCA 4214

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Broad Group Holdings Pty Ltd
(AG2017/3211)

BROAD CONSTRUCTION SERVICES (SA) PTY LTD ENTERPRISE AGREEMENT 2004

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 15 AUGUST 2017

Application for termination of the Broad Construction Services (SA) Pty Ltd Enterprise Agreement 2004.

[1] Broad Group Holdings Pty Ltd (the Applicant) has applied to terminate the Broad Construction Services (SA) Pty Ltd Enterprise Agreement 2004 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 30 June 2006.

[4] The relevant provisions of the Act are as follows:

“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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] Ms Latika Mahar, HR Manager of the Applicant has advised the Commission that the Agreement does not cover any employee and the Applicant has no intention to engage any employees under the Agreement in the future.

[6] The Construction, Forestry, Mining and Energy Union (CFMEU) was invited to provide its view on the application but did not seek to make a submission.

[7] I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[8] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the CFMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[9] Accordingly, the Broad Construction Services (SA) Pty Ltd Enterprise Agreement 2004 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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