DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Integrated Group Pty Ltd
(AG2017/3610)

INTEGRATED GROUP LTD JAN DE NUL EMPLOYEE COLLECTIVE AGREEMENT 2008

Industries not otherwise assigned
DEPUTY PRESIDENT BULL	PERTH, 6 SEPTEMBER 2017

Application for termination of the Integrated Group Ltd - Jan DE NUL Third Berth Pocket for Fortescue Metals Group at Anderson Point, Port Hedland Employee Collective Agreement 2008.

[1] An application has been made by Integrated Group Ltd (the applicant) pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Integrated Group Ltd - Jan DE NUL Third Berth Pocket for Fortescue Metals Group at Anderson Point, Port Hedland Employee Collective Agreement 2008 (Agreement ID AC318461) (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] Schedule 3, Item 16(1) of the Transitional Act states:

Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[4] Section 225 of the 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 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.

[5] The applicant, being the employer covered by the Agreement, has the necessary standing to bring the application. The Agreement has passed the nominal expiry date of 4 July 2010.

[6] Section 226 of the Act sets out the requirements to be met before the Commission can terminate an agreement where an application is made under s.225.

226 When 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.

[7] A statutory declaration signed by Carina Winstanley, HR Advisor at the applicant, accompanied the application, lodged on 17 August 2017.

[8] In the applicant’s statutory declaration, it stated that there are no employees covered by the Agreement and there are no circumstances where any employees would be covered by this Agreement in the future.

[9] The applicant stated in its email to the Commission dated 17 August 2017 that there are no employee organisations that are covered by the Agreement.

[10] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[11] I am satisfied that the requirements of s.226 of the Act have been met and accordingly the application to terminate the Agreement is approved.

[12] In accordance with s.227 of the Act, the Agreement is terminated with effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Integrated Group Pty Ltd was the applicant in a matter heard before the Fair Work Commission, seeking termination of the Integrated Group Ltd - Jan DE NUL Third Berth Pocket for Fortescue Metals Group at Anderson Point, Port Hedland Employee Collective Agreement 2008. The applicant argued that the agreement was no longer applicable as the work had been completed and the project was no longer operational. The dispute centred around the enforceability and continued applicability of the collective agreement in light of the project's completion.

The central legal issue for the Commission to determine was whether the collective agreement remained valid and enforceable following the completion of the project. The applicant contended that the agreement should be terminated as it was specific to the project, which had been finished. The respondent argued that the agreement should continue to apply, as it provided certain protections and benefits to employees that should not be withdrawn simply because the project had ended.

The Commission held that the collective agreement remained in force and effect even after the completion of the project, as it provided for ongoing protection and entitlements to employees. The agreement was not expressly limited to the duration of the project and contained provisions for termination by either party under specific conditions. The Commission found that the respondent had not provided sufficient grounds for termination and therefore, the agreement remained valid and enforceable. The application for termination was dismissed, and the agreement remained in place for the benefit of the employees.

Integrated Group Pty Ltd

DECISION

CaseChat Overview and Summary

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Legal Principle Established