Civmec Construction and Engineering Pty Ltd

[2018] FWCA 158

[2018] FWCA 158

FAIR WORK COMMISSION

DECISION

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

Civmec Construction and Engineering Pty Ltd
(AG2017/6104)

CIVMEC CONSTRUCTION AND ENGINEERING PTY LTD YANDI SUSTAINING PROJECT AMWU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT BINET	PERTH, 9 JANUARY 2018

Application for termination of the Civmec Construction and Engineering Pty Ltd Yandi Sustaining Project AMWU Greenfields Agreement 2013.

[1] Civmec Construction and Engineering Pty Ltd (Civmec)has applied (Application) for the Civmec Construction and Engineering Pty Ltd Yandi Sustaining Project AMWU Greenfields Agreement 2013 (Agreement) to be terminated pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 6 March 2015.

[3] The parties to the Agreement are Civmec and employees of Civmec engaged in the classifications specified in the Agreement (Employees).

[4] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) is an employee organisation covered by the Agreement.

[5] The Application was accompanied by a statutory declaration made by Mr Daniel Flight, Senior HR/IR Adviser at Civmec (Flight Declaration), which asserts that there are currently no employees covered by the Agreement. The Flight Declaration states that work on the relevant project was completed by November 2015, and that there are no plans to return to site.

[6] On 8 January 2018, the AMWU advised Chambers that it does not oppose the termination of the Agreement.

[7] Section 225 of the FW Act states:

“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.”

[8] Section 226 of the FW Act states:

“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.”

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

[10] Based on the materials filed by Civmec and in consideration of section 226(a), there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

[11] Pursuant to section 225 of the Act, and having considered the material before me relevant to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

[12] The termination will come into effect from 9 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE403503  PR599373>