Bryham Tree Recycling Pty Ltd T/A BTR Vegetation Management

[2019] FWCA 372

[2019] FWCA 372

The attached document replaces the document previously issued with the above code on 23 January 2019.

Paragraph numbers corrected.

Richard Murray

Associate to Commissioner Cirkovic

Dated 23 January 2019

[2019] FWCA 372

FAIR WORK COMMISSION

DECISION

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

Bryham Tree Recycling Pty Ltd T/A BTR Vegetation Management
(AG2018/6910)

BTR VEGETATION MANAGEMENT ENTERPRISE AGREEMENT 2013-2017

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 23 JANUARY 2019

s.225 - Application for termination of an enterprise agreement after its nominal expiry date Application for termination of the BTR Vegetation Management Enterprise Agreement 2013-2017.

[1] Bryham Tree Recycling Pty Ltd (“the Applicant”) made an application to the Fair Work Commission (“the Commission”) pursuant to section 225 of the Fair Work Act 2009 (Cth) (“the Act”) to terminate the BTR Vegetation Management Enterprise Agreement 2013-2017 (“the Agreement”).

[2] The Agreement came into operation on 26 April 2013 and was varied on 24 July 2014 such that its nominal expiry date is 19 April 2017.

[3] The Applicant filed a statutory declaration of Mr Jason Bingham, declared 11 December 2018 (“the Statutory Declaration”).

[4] I issued directions on 20 December 2018, directing the Applicant to serve the directions and its application upon any employees covered by the Agreement by close of business on 4 January 2019. On 21 December 2018 the Applicant served the relevant material on four employees. The employees were directed that, if they objected to the application, they should provide those objections to my chambers by close of business on 18 January 2018.

[5] No material was submitted in objection.

Legislation

[6] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passed its nominal expiry date. Section 225 is 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.”

[7] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

[8] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to section 225(a) of the Act.

Public Interest

[9] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that:

“Termination of the agreement is not contrary to public interest as we are an extremely small business and we are only subcontracting rather than directly contracted with the utility manager. Furthermore, retaining this enterprise agreement is no longer viable for the size of our business.”

[10] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to section 226(a) of the Act, on the basis that no employees are covered by the Agreement.

Views, Circumstances and Likely Effect of Termination

[11] There are no employee organisations covered by the Agreement.

[12] The Applicant declares in its Statutory Declaration that, if the agreement is terminated:

“Our existing employees will not suffer a loss of take hom pay/earnings and therefore termination of the agreement is not likely to effect [sic] our employees.

Terminating the enterprise agreement will allow our business to function more effectively as the current enterprise agreement is no longer viable for the size of our business.”

[13] No employee provided any material in objection to the application.

[14] Taking into account all the circumstances, prescribed by section 226(b)(i)-(ii) of the Act, I consider that it is appropriate to terminate the Agreement.

Conclusion

[15] For the reasons above, the Agreement must be terminated pursuant to section 226 of the Act.

[16] An Order will be issued terminating the Agreement with effect from 23 January 2018.

COMMISSIONER

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