Kal Tire (Australia) Pty Ltd

[2019] FWCA 7698

[2019] FWCA 7698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225—Enterprise agreement

Kal Tire (Australia) Pty Ltd
(AG2019/1506)

KLINGE & CO PTY LTD MUSWELLBROOK ENTERPRISE AGREEMENT 2013

Mining industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 NOVEMBER 2019

Application for termination of the Klinge & Co Pty Ltd Muswellbrook Enterprise Agreement 2013 – Agreement no longer covers any employees – views of the parties considered – termination of Agreement not contrary to the public interest.

[1] This is an application, filed on 9 May 2019, by Kal Tire (Australia) Pty Ltd (the ‘applicant’) pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of the Klinge & Co Pty Ltd Muswellbrook Enterprise Agreement 2013 [AE405450] (the ‘Agreement’). The Agreement no longer covers any of the applicant’s employees, and passed its nominal expiry date on 31 December 2015.

[2] The provisions of the Act governing applications of this kind, are set out 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 employees 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 is:

(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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.’

[3] In a statutory declaration accompanying the application (Form F24C), Ms Rebecca Pace, Manager – Human Resources and Safety, stated that the Agreement does not cover any employees, and the Agreement which covered the location and business contract is no longer in the applicant’s scope of works.

[4] In the application (Form F24B), Ms Pace indicated that no employee organisations are covered by the Agreement. However, upon reviewing the Agreement, I became aware that the National Union of Workers (the ‘Union’) is a party to the Agreement. The Union initially advised my Chambers that it intended to contest the termination of the Agreement. However, after not hearing from the parties for some time, Ms Monique Segan of the Union advised my Chambers on Thursday 7 November 2019 that it did not oppose the termination of the Agreement.

[5] Having considered the application, the accompanying statutory declaration, the views of the parties and the terms of the Agreement, I am satisfied that all of the requirements of the Act, in particular, ss 225, 226 and 227 of the Act, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement.

[6] Accordingly, the Klinge & Co Pty Ltd Muswellbrook Enterprise Agreement 2013 is terminated. Pursuant to s 227 of the Act and by consent, the termination is to take effect on and from 11 November 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE405450  PR714126>