Iron Mountain Australia Group Services Pty Ltd

[2020] FWCA 5857

[2020] FWCA 5857

FAIR WORK COMMISSION

DECISION

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

Iron Mountain Australia Group Services Pty Ltd
(AG2020/3181)

RECALL INFORMATION MANAGEMENT PTY LTD TASMANIA - ENTERPRISE AGREEMENT 2015

Storage services
COMMISSIONER CIRKOVIC	MELBOURNE, 2 NOVEMBER 2020

Application for termination of the Recall Information Management Pty Ltd Tasmania - Enterprise Agreement 2015 after its nominal expiry date.

[1] Iron Mountain Australia Group Services Pty Ltd (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Recall Information Management Pty Ltd Tasmania - Enterprise Agreement 2015 (the Agreement).

[2] The Agreement came into operation on 14 March 2016 and its nominal expiry date is 30 June 2019.

[3] The Applicant’s application indicated that no employees or employee organisations were covered by the Agreement.    1

[4] I determined that it was appropriate to decide this matter on the papers. 2

Legislation

[5] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passed its nominal expiry date. Section 225 is 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.”

[6] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

[7] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to section 225(a) of the Act.

Public Interest

[8] The notion of public interest refers to matters that might affect the public as a whole, as distinct from the interests of the parties. 3 In the context of s.226 of the Act, public interest considerations are directed to the consequences of terminating the Agreement and particularly those consequences which are likely foreseeable.4 The question is whether the Commission is satisfied that termination of the Agreement is not contrary to the public interest.

[9] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in the statutory declaration of Mr Deepak Rawat declared 21 October 2020 that:

“The enterprise agreement expired on 30 June 2019 and currently there are no employees covered under this agreement and the company is not planning to recruit any staff in near future under the enterprise agreement hence the company is proposing to terminate the enterprise agreement.

In future the company will recruit new staff under individual employment agreement, with Storage Services and Wholesale Award 2020 as the underpinning award.” 5

[10] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to section 226(a) of the Act, on the basis that no employees are covered by the Agreement.

Views, Circumstances and Likely Effect of Termination

[11] The Applicant supports the termination of the Agreement, noting that it does not plan to recruit any staff “in the near future” under the Agreement and a result is proposing to terminate the Agreement.

[12] No employee organisations are covered by the Agreement. 6

[13] No employees are covered by the Agreement. 7

[14] Taking into account all the circumstances, prescribed by section 226(b)(i)-(ii) of the Act, I consider that it is appropriate to terminate the Agreement.

Conclusion

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

[16] In accordance with section 227 of the Act, the termination will operate from 2 November 2020.

COMMISSIONER

 1   Form F24B dated 21 October 2020.

 2   The Applicant consented to this approach.

 3   Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 (Kellogg Brown) at p.40; see also Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 (Aurizon)at [153]

 4   Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 (Kellogg Brown) at p.41.

 5   Form F24C dated 21 October 2020 at 2.1.

 6   Form F24B dated 21 October 2020 at 3.1.

 7   Form F24C dated 21 October 2020 at 2.2.

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