Dak-Wal Constructions Pty Ltd

[2013] FWCA 7635

[2013] FWCA 7635

FAIR WORK COMMISSION

DECISION

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

Dak-Wal Constructions Pty Ltd
(AG2013/2721)

DAK-WAL CONSTRUCTIONS PTY LTD AND EMPLOYEES CERTIFIED AGREEMENT [2005]

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 2 OCTOBER 2013

Application for termination of the Dak-Wal Constructions Pty Ltd and Employees Certified Agreement [2005].

[1] The decision concerns an application by Dak-Wal Constructions Pty Ltd to terminate the Dak-Wal Constructions Pty Ltd And Employees Certified Agreement [2005] (the Agreement), pursuant to item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and section 225 of the Fair Work Act 2009 (the FW Act).

[2] The Agreement is identified as AG2005/2999 and was approved by the Australian Industrial Relations Commission on 10 March 2005 with an expiry date of 2 January 2008.

[3] The purpose in making the application is to terminate the Agreement and have the employees covered by two modern awards as much of the content of the modern awards is not mentioned in the Agreement. The purpose of the application then is to have the relevant modern awards apply: per Statutory Declaration of Ms Aimee Van Huissetede, Human Resources Advisor.

Relevant Legislation

[4] Item 16 of Schedule 3 of the Transitional Act (which deals with the termination of enterprise agreements after their nominal expiry date), refers to Subdivision D of Division 7 of Part 2-4 of the FW Act, in respect of a termination application.

Subdivision D of Division 7 of Part 2-4 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.

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.”

[5] As to s.225, the employer has made the application to terminate the Agreement.

[6] As to s.226, it sets out the criteria that must be considered by the Tribunal in assessing whether the application to terminate the Agreement should be granted.

Section 226 and Public Interest

[7] Section 226(a) asks the Tribunal whether termination of the Agreement would be contrary to the public interest. In assessing that question, the Tribunal has taken into account the following: (a) the Agreement expired over five years ago; (b) two modern awards would apply in lieu of the Agreement and (c) Statutory Declaration of Mr Gregory Smith advising that a majority of the staff agreed with cancelling the Agreement. The Tribunal was provided with the “ballot paper” of each employee which showed majority support for cancelling the Agreement.

[8] Accordingly, the Tribunal finds it is not against the public interest to terminate the Agreement.

Section 226 and the Appropriate Circumstances

[9] Section 226(b) requires that the Tribunal consider the views of the parties, the effect of the Agreement on the parties and the circumstances of those parties.

[10] The employer seeks to terminate the Agreement. The employees, by a majority (27 votes for/3 votes against) have agreed to terminate the Agreement.

[11] The employees will have the benefit of two modern awards, in lieu of the conditions and remuneration of the Agreement, that was certified in 2005.

[12] Having considered all matters, the Tribunal finds that it is appropriate to terminate the Agreement taking into account the views of the parties and the likely effect on them, per s.226(b).

Orders

[13] Pursuant to s.227 of the FW Act, the termination of the Agreement shall operate from 2 October 2013.

COMMISSIONER

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