Giovenco Industries (AUST) Pty Ltd T/A Giovenco Industries

[2016] FWCA 3281

[2016] FWCA 3281

FAIR WORK COMMISSION

DECISION

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

Giovenco Industries (AUST) Pty Ltd T/A Giovenco Industries
(AG2016/3224)

RIO TINTO ALCAN MAINTENANCE AGREEMENT GIOVENCO INDUSTRIES (AUST) PTY LTD AND AWU 2008-2011

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 MAY 2016

Application for termination of the Rio Tinto Alcan Maintenance Agreement Giovenco Industries (Aust) Pty Ltd and AWU 2008-2011.

[1] Giovenco Industries (Aust) Pty Ltd t/a Giovenco Industries (Giovenco Industries) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Rio Tinto Alcan Maintenance Agreement Giovenco Industries (Aust) Pty Ltd and AWU 2008-2011 (the Agreement). 1 The Agreement is expressed to cover Giovenco Industries (Aust) Pty Ltd (NSW) Pty Ltd and its employees engaged in classifications specified in the Agreement and the Australian Workers Union (AWU) specified in clause 1.2 of the Agreement. The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

‘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.’

[3] Section 226 of the Act provides:

‘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] The AWU is an organisation which is covered by the Agreement. In correspondence to my Chambers of 24 May 2016, the AWU advised that it did not oppose the termination of the Agreement.

[5]
Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement and as stated in the employer’s declaration the Agreement does not cover nor apply to any employee of Giovenco Industries. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 24 May 2016.

DEPUTY PRESIDENT

 1AC321313.

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