CPB Contractors Pty Limited

[2020] FWCA 370

[2020] FWCA 370

FAIR WORK COMMISSION

DECISION

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

CPB Contractors Pty Limited
(AG2020/133)

LEIGHTON CONTRACTORS PTY LIMITED APLNG UPSTREAM PROJECT UNION GREENFIELDS AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 23 JANUARY 2020

Application for termination of the Leighton Contractors Pty Limited APLNG Upstream Project Union Greenfields Agreement 2012.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by CPB Contractors Pty Limited (the Applicant) to terminate the Leighton Contractors Pty Limited APLNG Upstream Project Union Greenfields Agreement 2012 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 20 March 2016.

[3] Further, ss.225 and 226 of the FW Act relevantly 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.”

[4] Ms Kirsty Augustine, the Industrial Relations Manager of the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. The Applicant sought the termination of the Agreement on the basis that the as the Employer’s scope of works for the Agreement had ceased. Ms Augustine confirmed in her statutory declaration that:

•  The Agreement’s nominal expiry date had passed;

•  The Employer’s scope of works for the Agreement had ceased;

•  No employees are employed under the Agreement, as such there would be no public interest relevant which would warrant the continuation of the Agreement; and

•  The Employer does not intend to employ anyone under the coverage of this Agreement now or in the future.

[5] Correspondence was sent to the relevant employee organisations covered by the Agreement, being The Australian Workers’ Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. Each employee organisation provided a response confirming their support for the termination of the Agreement.

[6] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 30 January 2020.

[7] I Order accordingly.

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