Bureau Veritas Asset Integrity and Reliability Services (Australia) Pty Ltd T/A Bureau Veritas Asset Integrity and Reliability Services (Australia) Pty Ltd

[2022] FWCA 2666

[2022] FWCA 2666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Bureau Veritas Asset Integrity and Reliability Services (Australia) Pty Ltd T/A Bureau Veritas Asset Integrity and Reliability Services (Australia) Pty Ltd

(AG2022/3117)

Bureau Veritas & AMWU Victorian Enterprise Agreement 2017

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 5 AUGUST 2022

Application for termination of the Bureau Veritas & AMWU Victorian Enterprise Agreement 2017.

1. On 25 July 2022, Bureau Veritas Asset Integrity and Reliability Services (Australia) Pty Ltd T/A Bureau Veritas Asset Integrity and Reliability Services (Australia) Pty Ltd (Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Bureau Veritas & AMWU Victorian Enterprise Agreement 2017 (Agreement).[1] The Agreement passed the nominal expiry date of 30 June 2020 and the Applicant is the employer covered by the Agreement. I note that the Agreement covers the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

1. Accompanying the application was the Form F24C declaration (declaration) made by Ms Sarah Henson, Human Resources Manager with the Applicant, on 25 July 2022 in which she declared that there are no employees covered by the Agreement and that the Applicant no longer employs any employees.

1. The Applicant served the application and declaration on the AMWU on 25 July 2022.

1. On 26 July 2022, my chambers emailed the AMWU requesting their advice on whether or not they oppose the application by no later than 4:00pm on Friday, 29 July 2022. By 4 August 2022, no response has been received from the AMWU.

Legislation

1. Section 225 of the Act provides 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.”

1. Section 226 of the Act provides 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.”

1. Section 227 of the Act provides as follows:

“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.”

Consideration

Section 225

1. An employer covered by an enterprise agreement may apply under s.225(a) of the Act to the Commission for the termination of an agreement if it has passed its nominal expiry date. As noted above, the Agreement nominally expired over two years ago. Further, Ms Henson declared that the Applicant is the employer covered by the Agreement. As such, I am satisfied that the Applicant has standing to bring the application under s.225(a) of the Act.

Section 226

1. Based on the material before me, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b), I consider that it is appropriate to terminate the Agreement.

1. Given my conclusions above, I must terminate the Agreement. In accordance with s.227 of the Act, the termination will take effect from 5 August 2022.

COMMISSIONER

[1] AE425615.  

Printed by authority of the Commonwealth Government Printer

<AE425615  PR744549>