HVA Technical Services Pty Ltd T/A HVA Technical Services Pty Ltd

[2020] FWCA 104

[2020] FWCA 104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

HVA Technical Services Pty Ltd T/A HVA Technical Services Pty Ltd
(AG2020/15)

HVA SERVICES TEAM MEMBER AGREEMENT 2011

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 16 MARCH 2020

Application for termination of the HVA Services Team Member Agreement 2011.

[1] This decision concerns an application made by HVA Technical Services Pty Ltd T/A HVA Technical Services Pty Ltd (the Applicant) on 3 January 2020 for the termination of the HVA Services Team Member Agreement 2011 1(the Agreement) under s 225 of the Fair Work Act 2009 (Cth) (the Act). This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[2] Sections 225 and 226 of the Act 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.

[3] The Agreement covers HVA Services (ABN 51 072 703 596) and the employees in the classification groups outlined in cl 2.3 of the Agreement, performing work in the ‘Metalliferous Mining Industry throughout Australia’. 2

[4] Ms Carina Winstanley, a People Partner of the Applicant, submitted a statutory declaration in support of the application in which she outlined that there are no employees covered by the Agreement and that the Agreement has been replaced by the HVA Services Enterprise Agreement 2018. 3 The nominal expiry date of the Agreement was 12 August 2015.

[5] Clarification was also sought regarding the Applicant’s standing to bring the application, as there were discrepancies between the entity covered in the Agreement and the entity making the Application. The company covered by the Agreement had a different name to the Applicant in this termination application.

[6] Ms Keira Nguyen, People Advisor, confirmed that HVA Technical Services Pty Ltd has traded under that name since 19 November 2003, before the Agreement was approved.

[7] My Chambers also undertook an ABN search; there is no entity currently registered with ASIC or the Australian Business Register as HVA Services. Further the ABN of HVA Technical Services Pty Ltd on the Australian Business Register is the same as that recorded in Part 1 of the Agreement, which matches the ABN provided in the current application.

[8] For these reasons, it appears that the name used in Part 1 of the Agreement mistakenly names the employing entity ‘HVA Services’ instead of ‘HVA Technical Services’.

Consideration

[9] Given that no employees or employee organisations are covered by the Agreement, and taking into account all of the circumstances including those in ss 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. I am satisfied that the termination of the Agreement is not contrary to the public interest, and in the circumstances of this case, it is appropriate to terminate the Agreement.

Conclusion

[10] For the reasons above, the Agreement must be terminated pursuant to s 226 of the Act.

[11] The termination takes effect from the date of this decision.

DEPUTY PRESIDENT

 1   [2011] FWAA 5227; AE887320.

 2   Cl.2.3 of the Agreement.

 3   AE501831

Printed by authority of the Commonwealth Government Printer

<AE887320  PR715794>