Construction, Forestry, Mining and Energy Union; Waycon Services Newcastle Pty Ltd

[2018] FWCA 1129

[2018] FWCA 1129

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application  to terminate collective agreement-based transitional instrument

Construction, Forestry, Mining and Energy Union; Waycon Services Newcastle Pty Ltd

(AG2018/325)

WAYCON SERVICES NEWCASTLE PTY LTD (CIVIL SECTOR) /CFMEU ENTERPRISE AGREEMENT EXPIRING 31 MARCH 2008

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 22 FEBRUARY 2018

Application for termination of the Waycon Services Newcastle Pty Ltd (Civil Sector) /CFMEU Enterprise Agreement Expiring 31 March 2008.

1. Waycon Services Newcastle Pty Ltd made an application to the Fair Work Commission (FWC) to terminate the Waycon Services Newcastle Pty Ltd (Civil Sector) / CFMEU Enterprise Agreement Expiring 31 March 2008 (the Agreement).

1. The Agreement has passed its nominal expiry date of 31 March 2008.

1. For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

1. Section 226 of the Act states:

When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

1. A Statutory Declaration was filed of Ms Carina Winstanely, HR Advisor, which submits that the termination of the Agreement is not contrary to the public interest as:

(i)No employees are currently employed by the Company under this Agreement; and

(ii)The Company has no intention to engage any employees under the Agreement as the work that was previously undertaken under this Agreement is no longer undertaken.

1. In the absence of any evidence to the contrary, I am satisfied the termination of the Agreement is not contrary to the public interest.

1. Taking into account the above, I consider in the circumstances that it is appropriate to terminate the Agreement.

1. Accordingly, the Agreement is terminated. The termination will come into effect from 22 February 2018.

COMMISSIONER

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