Cement Australia Pty Limited

[2020] FWCA 4085

[2020] FWCA 4085

The attached document replaces the document previously issued with the above code on 5/08/2020.

Updating Agreement title in paragraph 1.

Mackenzie Barnes

Associate to COMMISSIONER SPENCER

Dated 5/08/2020

[2020] FWCA 4085

FAIR WORK COMMISSION

DECISION

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

Cement Australia Pty Limited
(AG2020/2090)

CEMENT AUSTRALIA PACKAGE PRODUCTS OPERATORS TOWNSVILLE ENTERPRISE AGREEMENT 2017

Cement and concrete products
COMMISSIONER SPENCER	BRISBANE, 5 AUGUST 2020

Application for termination of the Cement Australia Package Products Operators Townsville Enterprise Agreement 2017.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by UGL Operations and Maintenance Pty Ltd (the Applicant) to terminate the Cement Australia Package Products Operators Townsville Enterprise Agreement 2017 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 24 June 2014.

[3] Sections 225 and 226 of the FW Act relevantly provide:

“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.”

[4] Ms Renata Plonka, Human Resources Business Partner for the Applicant, provided a Form F24C Statutory Declaration in support of the application. Ms Plonka stated that no employees were currently covered by the Agreement. Directions were issued for the filing of further information and submissions in support of the application.

[5] In response to the Directions, Ms Courtney Oberthur, Human Resources Advisor for the Applicant, provided a signed statement in support of the application to terminate the Agreement. Ms Oberthur stated that the Applicant sought the termination of the Agreement on the basis that no employees are currently employed by the Applicant under this Agreement. Ms Oberthur stated that due to reduced volumes and inconsistent demand, the Applicant has engaged the services of one full-time equivalent labour hire resource. Ms Oberthur further stated that the Applicant will continue to use this labour hire model for the foreseeable future, until such a time that the demand increases and stabilises.

[6] Ms Oberthur further stated that as there were no employees covered by the Agreement, no employee views were available on the matter. Ms Oberthur also stated that there would be no effect of the termination of the Agreement on employees as there are no employees covered by the Agreement. Ms Oberthur also stated that there is no known information that would indicate that the termination of the Agreement would be contrary to the public interest.

[7] Ms Oberthur submitted that the Applicant currently engages a labour hire worker to meet their current demands. Ms Oberthur stated that the Applicant does not foresee recruitment of any additional workers to the site, based on the current demand. The Applicant submitted that if the demand increases and the engagement arrangement changes, the Applicant will directly employ a full-time employee, under a common law employment contract. The Applicant submitted that the rates of pay under this common law contract would be greater than that of a Level 5 under the Cement, Lime and Quarrying Award 2020. Ms Oberthur provided a comparison demonstrating this higher rate of pay.

[8] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 5 August 2020.

[9] I Order accordingly.

COMMISSIONER

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