CAU Pty Ltd T/A CarmichaelAU

[2018] FWCA 72

[2018] FWCA 72

FAIR WORK COMMISSION

decision

Fair Work Act 2009

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

CAU Pty Ltd T/A CarmichaelAU

(AG2017/6385)

CarmichaelAU Enterprise Agreement 2014

Building, metal and civil construction industries
Commissioner Hunt	BRISBANE, 5 February 2018

Application for termination of the CarmichaelAU Enterprise Agreement 2014.

1. On 18 December 2017 CAU Pty Ltd (the Employer) applied pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the CarmichaelAU Enterprise Agreement 2014 (the Agreement). The Agreement has passed its nominal expiry date.

1. The application was accompanied by a statutory declaration in support of the termination declared by Mr Peter Laver, Director.

1. Communication from my Chambers was issued to the Employer, directing it to provide a copy of the communication it issued to each of its two employees covered by the Agreement.  The Employer provided a copy of the communication and an email response from each of the employees in support of the termination.

The legislation

1. Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which 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.”

Consideration

1. Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

1. With regard to the circumstances of the employees following termination of the Agreement, the Building and Construction General On-site Award 2010 will apply. In consideration of the material before me relevant to s.226(b)(i) and (ii), and the two employees’ support of the application, I consider that it is appropriate to terminate the Agreement.

1. In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The termination will take effect from today, 5 February 2018.

COMMISSIONER

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