JobTrail Pty Ltd

[2022] FWCA 3847

[2022] FWCA 3847

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

JobTrail Pty Ltd

(AG2022/4534)

Longfield Services Enterprise Agreement 2017

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 2 NOVEMBER 2022

Application for termination of the Longfield Services Enterprise Agreement 2017.

1. An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Jobtrail Pty Ltd (the Applicant) to terminate the Longfield Services Enterprise Agreement 2017 (the Agreement).

1. The Agreement was originally made by RL Industries Pty Ltd T/A Longfield Services, ABN provided. Since the Agreement was approved, RL Industries Pty Ltd changed its name to JobTrail Pty Ltd. The ABN has been retained and remains the same.

1. Submissions were provided in relation to the relevant statutory criteria, set out below.

1. 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.”

1. The Applicant (in accordance with s.225(a) of the Act) was an Employer covered by the Agreement. The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 30 April 2022.

1. Ms Katherine Langdon, Senior Employment Relations Advisor for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement.

1. In her statutory declaration, Ms Langdon stated that the employer has no employees engaged under the Agreement and there has been no bargaining for the renegotiation of the Agreement.

1. Ms Langdon submitted that in the current circumstances, and in line with the principles for the termination of an Agreement as outlined in Re Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd,[1] that is, the termination of the Agreement is not contrary to the public interest because there is nothing ‘distinct from the interests of the persons and bodies covered by the agreements’ that has arisen in the application.

1. The Full Bench in Re Aurizon also observed that termination of an Agreement does not preclude the potential creation of a future Agreement, and is not counter to the Objects of the Act directed at providing a fair framework for bargaining.[2]

1. In respect of any future employees, Ms Langdon submitted that the termination of the Agreement doesn’t preclude the creation of a future Agreement, and compliance with the proper industrial standards and a safety net are provided for in the form of the Building and Construction General On-site Award 2020 and the operation of the National Employment Standards as prescribed by the Fair Work Act.

1. Ms Langdon further submitted that employees engaged by the Applicant, who work in Queensland on the Cross River Rail Project, will be covered by the RL Industries Greenfields Agreement, which has a nominal expiry date of 18 March 2024.

1. Ms Langdon stated that the effect of the termination would also simplify the employer’s framework of enterprise agreements. Ms Langdon also stated that there is no effect upon any employee(s) because there are no current employees covered by the Agreement and there has been no bargaining sought or undertaken for a replacement Agreement. Further, the Agreement does not cover any Union.

1. The information provided meets the statutory criteria in s.226 of the Act. It is therefore appropriate to terminate the Agreement. The application is therefore granted. The termination of the Agreement will take effect from 2 November 2022.

1. I Order accordingly.

COMMISSIONER

[1] [2015] FWCFB 540 [at 129].

[2] Ibid at [159].

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