FALCK Victoria Pty Limited
[2022] FWCA 2516
•26 JULY 2022
| [2022] FWCA 2516 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
FALCK Victoria Pty Limited
(AG2022/2468)
| Health and welfare services | |
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 26 JULY 2022 |
Application for termination of the CFMMEU Falck Victoria Loy Yang ‘A’ Enterprise Agreement 2020
On 19 July 2022, FALCK Victoria Pty Limited (FALCK Victoria) filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the CFMMEU Falck Victoria Loy Yang ‘A’ Enterprise Agreement 2020 (the Agreement). The Agreement is a single enterprise agreement which nominally expired on 1 July 2022. I note that the Agreement covers the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU).
Accompanying the Application was a Form F24C statutory declaration made by Annie Marcon, Senior HR/IR Advisor, on 18 July 2022 in which it is declared there are no employees covered by the Agreement. FALCK Victoria advised that it had served the Application and statutory declaration on the CFMMEU.
I issued Directions on 19 July 2022 requiring the CFMMEU to advise the Commission whether or not it opposed the application of FALCK Victoria to terminate the Agreement.
On 25 July 2022, in an email to my Chambers, Mr Adam Walkaden, Senior National Legal Officer of the Mining and Energy Union which is a division of the CFMMEU confirmed that it did not oppose the application.
Legislation
The Act relevantly provides 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.”
Consideration
Section 225
An employer covered by an agreement may apply under s.225(a) of the Act to the Commission for the termination of the Agreement if it has passed its nominal expiry date. As noted above, the Agreement nominally expired on 1 July 2022. I am satisfied that FALCK Victoria has standing to bring the Application under s.225(a) of the Act.
Section 226
The Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd[1] concluded that it cannot be expected that the terms and conditions of an agreement will continue unaltered in perpetuity after it has passed its expiry date. This is because the Act contemplates the terms and conditions of an agreement may be altered by making a new agreement or by terminating the existing agreement.[2]
In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement (s.226(a)) and it is appropriate to do so, taking into account all the circumstances (s.226(b)). In this latter regard, I note the employer consents to the termination of the Agreement and that it has ceased both providing emergency services at Loy Yang ‘A’ and employing any employees there for the provision of these. Further, the CFMMEU, the employee organisation covered by the Agreement, does not oppose the termination. Finally, I note that as there are no longer any employees covered by the Agreement, there are no views of employees to take into account nor any effects of termination to be felt.
Given my conclusions above, I must terminate the Agreement. In accordance with s.227 of the Act, the termination will take effect from 26 July 2022.
DEPUTY PRESIDENT
[1] [2015] FWCFB 540.
[2] Ibid at [176].
Printed by authority of the Commonwealth Government Printer
<AE509380 PR744208>
0
0
0