Clough AMEC Pty Ltd

[2017] FWCA 3961

[2017] FWCA 3961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Clough AMEC Pty Ltd
(AG2017/3088)

CLOUGH AMEC PTY LTD ONSHORE OFFSHORE ENTERPRISE AGREEMENT 2012

Mining industry
DEPUTY PRESIDENT BULL	PERTH, 31 JULY 2017

Application for termination of the Clough AMEC Pty Ltd Onshore Offshore Enterprise Agreement 2012.

[1] An application was made by Clough AMEC Pty Ltd (the applicant) under s. 225 of the Fair Work Act 2009 (the Act) to terminate the Clough AMEC Pty Ltd Onshore Offshore Enterprise Agreement 2012 (the Agreement).

Background

[2] The Agreement was approved by the Fair Work Commission on 22 August 2012 to operate from 29 August 2012, with a nominal expiry date of 22 August 2016.

[3] Subclause 1.3 of the Agreement describes the coverage and application of the Agreement as:

“1.3.1 The Agreement shall apply to Employees of Clough AMEC Pty Ltd engaged in one of the classifications described at clause 6.1 and performing preparatory work, maintenance, repair, servicing, rehabilitation, modification, upgrades, hookups, commissioning, decommissioning or capital and associated works in or in connection with the production, processing, piping, distribution of hydrocarbons or other products howsoever described from oil and gas fields and work incidental thereto on sites, installations or facilities whether fixed or floating or submersible either onshore or offshore and to any work conducted by those employees of Clough AMEC Pty Ltd on vessels or FPSOs operated by any client of Clough AMEC in Australia.

1.3.2 The Agreement shall apply in the Commonwealth of Australia and in the adjacent areas as defined in the Petroleum (Submerged Lands) Act in force from time to time whether Commonwealth or State as the case may be.”

[4] Ms Salyna Duplock, Human Resources Manager of the applicant, declared in a Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date (F24C) that the applicant currently has no employees who are covered under the Agreement and the applicant does not currently envisage that they will employ any personnel in the classifications identified in the Agreement.

[5] Sections 225 and 226 of the Act 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.”

Consideration

[6] The Agreement has passed its nominal expiry date.

[7] The applicant, being the employer covered by the Agreement, has the necessary standing to bring the application under s.225(a) of the Act.

[8] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might weigh against termination of the Agreement.

[9] With respect to the views of parties, the applicant is the employer. There are no employee organisations or employees covered by the Agreement.

[10] Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[11] I am satisfied that the requirements under s.225 and 226 of the Act have been met. I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to approve the termination of the Agreement.

[12] Accordingly, an Order [PR595002] to this effect will be issued ordering that the Agreement be terminated with effect from the date of this decision.

DEPUTY PRESIDENT

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