Decmil Australia Pty Ltd

[2021] FWCA 1190

[2021] FWCA 1190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Decmil Australia Pty Ltd
(AG2020/3672)

DA QUEENSLAND CSG PROJECT SPECIFIC AGREEMENT

Oil and gas industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 10 MARCH 2021

Application for termination of the DA Queensland CSG Project Specific Agreement.

[1] Decmil Australia Pty Ltd (Decmil) applies for approval of the termination of an enterprise agreement known as the DA Queensland CSG Project Specific Agreement (the Agreement). The application was made pursuant to s.222 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] The Agreement was approved on 30 April 2020 and commenced operation on 7 May 2020. The nominal expiry date of the Agreement is 31 March 2024. 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 (CEPU) were bargaining representatives for the agreement and are covered by the Agreement pursuant to s. 183 of the Act.

CONSIDERATION

[3] Decmil, being a person covered by the Agreement, applies for its termination pursuant to s.222 of the Act. The application was accompanied by the required declarations.

[4] Section s. 223 of the Act provides that if an application for the approval of a termination of an enterprise agreement is made under section 222, the Fair Work Commission (FWC) must approve the termination in the following circumstances:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[5] Information contained in Decmil’s application stated that Decmil was seeking to have the Agreement terminated due to the completion of all projects applicable under the scope of the Agreement and the expectation that there will no longer be a requirement for the Agreement.

[6] The application also stated that there are no longer any employees engaged under the Agreement and that the Agreement was negotiated to specifically cover the scope of works that Decmil was performing on the QGC Project. At the time of the Agreement being lodged for approval with the Commission, the term of the contract of works on the QGC Project was expected to be for a minimum of three (3) years (ending 1 November 2021), with one year rolling periods thereafter.

[7] Decmil’s client advised Decmil on 1 July 2020 that all operations Decmil was performing on the QGC Project were no longer required and subsequently the contract for the project would be terminated. Decmil signed an amending agreement with the client, bringing forward the termination date for the QGC Project scope to 30 September 2020. All operations on the QGC Project have ceased and Decmil does not have any foreseeable requirement for the Agreement moving forward.

[8] The originating application was accompanied by a Statutory Declaration of Ms Jessica Logan, People and Culture Manager of Decmil which declares that there are no employees covered by the Agreement

[9] On 5 February 2021 I caused correspondence to be sent to Decmil, Mr Steve Franklin of the AMWU and Mr Daniel McGaw of the CEPU, noting that while the application had been made under s.222 of the Act, it was apparent that no employees had “agreed” to the termination of the Agreement on the basis that there are no employees covered by the Agreement. I also noted that the Agreement had not passed its nominal expiry date such that an application could be made under s. 225 of the Act.

[10] I also referred the parties to two decisions of the Commission 1 dealing with applications to terminate an enterprise agreement in circumstances where there are no employees covered by the Agreement to agree to the termination, and where an application could not be made under s. 225 of the Act.

[11] That correspondence sought the views of the AMWU and the CEPU in relation to the two decisions and whether the application by Decmil was opposed. I also indicated that if there were no objections to the application, it was my provisional view that Decmil had complied with s.220(2) of the Act to the extent possible, and I would grant the application. The AMWU and the CEPU were requested to notify of any objections by 4.00pm on Wednesday 10 February 2010. No response was received from either the AMWU and the CEPU stating that there was any objection to the application being granted.

[12] On the basis of the originating application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.220(2) and 221(2) as are relevant to this application for termination have been met. Given the circumstances, sections 223(b) and (c) of the Act are not relevant in this matter as, since 30 September 2020, there were no longer any employees covered by the Agreement who could agree to terminate the Agreement. I also accept that there is no likelihood of any employees being covered by the Agreement in the future. In relation to s.223(d) of the Act, as indicated above, I have sought the views of the AMWU and the CEPU and have not received any objection to this application.

[13] The termination of the Agreement is approved. The termination will operate from 10 March 2021.

DEPUTY PRESIDENT

 1   Polyseal Waterproofing Australia Pty Limited [2013] FWCA 7717; Metro Media Services Pty Ltd [2014] FWCA 4640.

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