ISA Australia Pty Ltd

[2020] FWCA 2991

[2020] FWCA 2991

FAIR WORK COMMISSION

DECISION

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

ISA Australia Pty Ltd
(AG2020/1388)

ISA AUSTRALIA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2009 - 2011

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 8 JUNE 2020

Application for termination of the ISA Australia Pty Ltd and CFMEU Union Collective Agreement 2009 - 2011.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by ISA Australia Pty Ltd (the Applicant) to terminate the ISA Australia Pty Ltd and CFMEU Union Collective Agreement 2009 – 2011 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 31 March 2011.

[3] The Construction, Forestry, Maritime, Mining and Energy Union, being covered by the Agreement, confirmed that they did not wish to be heard in relation to this application.

[4] Further, ss.225 and 226 of the FW Act relevantly 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.”

[5] Mr Rodney Hampton, Director of the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Hampton stated that the Applicant sought the termination of the Agreement on the basis that the Company does not have any employees and has not traded for 6 years.

[6] Mr Hampton confirmed in his statutory declaration that the Applicant does not have any employees and is not currently trading and therefore would not have any effect on any employees nor would the termination be contrary to the public interest.

[7] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 8 June 2020.

[8] I Order accordingly.

COMMISSIONER

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