Cement Australia Pty Limited

[2014] FWCA 1191

[2014] FWCA 1191

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
(AG2014/306)

CEMENT AUSTRALIA DRIVERS (NORTH WEST QUEENSLAND) ENTERPRISE AGREEMENT 2011

Road transport industry
COMMISSIONER SPENCER	BRISBANE, 21 FEBRUARY 2014

Application for termination of the Cement Australia Drivers (North West Queensland) Enterprise Agreement 2011.

[1] Cement Australia Pty Limited (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Cement Australia Drivers (North West Queensland) Enterprise Agreement 2011 1 (the Agreement).

[2] The Agreement has a nominal expiry date of 31 December 2013.

[3] Section 226 of the Act provides:

“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

[4] The Commission is satisfied that an application for termination of an enterprise agreement has been made under s.225 of the Act. The Commission must terminate the Agreement after having taken into account those matters in s.226 of the Act and forming the requisite satisfaction. Each matter will be considered in turn.

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[5] The Applicant is the employer, covered by the Agreement. The Applicant declared, in the statutory declaration in relation to termination of an Agreement, filed with the application, that no employees are currently covered by the Agreement and that there is no intention to employee, employees pursuant to the Agreement.

[6] The Applicant relied upon a statement of Mr Philip Copeland, Senior Human Resources Manager. Mr Copeland stated that the Agreement covered employees at the Applicant’s Mount Isa and Cloncurry operations. Mr Copeland stated that both of those facilities have now been closed and employees that were employed at those sites (and covered by the Agreement) were terminated by way of redundancy.

[7] There are no employees or employee organisations currently covered by the Agreement.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[8] Given the Applicant’s submission that no employees are currently employed, or currently intended to be employee pursuant to the Agreement, the Applicant submitted that there is no likely effect for the Commission to consider.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[9] The Respondent submitted that there was nothing within their knowledge that would be contrary to the public interest in the termination of the Agreement.

[10] On the material it can be seen that this Agreement has passed its nominal expiry date. Further, the Applicant has submitted that the termination of the Agreement will have no effect as there are no employees currently employed under the Agreement..

Conclusion

[11] The Commission is satisfied that an application for the termination of an enterprise agreement has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[12] The Commission is satisfied that it is not contrary to the public interest to order the termination of the Agreement.

[13] The Commission is satisfied that it is appropriate in all the circumstances and having considered the views of the Applicant.

[14] Having considered the material and s.226 of the Act the Agreement must be terminated.

[15] The termination will operate from the date of this decision.

[16] I Order accordingly.

COMMISSIONER

 1   AE894144.

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<Price code A, AE894144  PR547884>