Clough Projects Pty Ltd T/A Clough

[2017] FWCA 3720

[2017] FWCA 3720

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Clough Projects Pty Ltd T/A Clough
(AG2017/2730)

CLOUGH PROJECTS INDUSTRIAL AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 18 JULY 2017

Application for termination of the Clough Projects Industrial Agreement 2009.

[1] Clough Projects Pty Ltd T/A Clough (the Applicant) has applied to terminate the Clough Projects Industrial Agreement 2009 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 27 June 2014.

[4] The relevant provisions of the Act 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.”

[5] Mr Michael Borlase, ER-IR Manager of the Applicant has advised the Commission that the Agreement does not cover any employee and the Applicant does not anticipate engaging any employees under the Agreement in the future.

[6] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[7] Accordingly, the Clough Projects Industrial Agreement 2009 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

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