Keltic Pty Ltd

[2017] FWCA 373

[2017] FWCA 373

FAIR WORK COMMISSION

DECISION

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

Keltic Pty Ltd
(AG2017/104)

KELTIC PTY LTD – CERTIFIED AGREEMENT (CA727 OF 2003)

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 1 FEBRUARY 2017

Application for termination of the Keltic Pty Ltd - Certified Agreement (CA727 of 2003).

[1] On 16 January 2017, Keltic Pty Ltd (the Company) applied under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Keltic Pty Ltd – Certified Agreement (CA727 of 2003) (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration of Ken Brauer, Director of the Company.

Legislative provisions

[3] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) 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] Chapter 2, Part 2-4, Division 7, Subdivision D 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.

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.

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.’

[5] The Construction, Forestry, Mining & Energy Union (CFMEU) is an organisation that is covered by the Agreement.

[6] I instructed my associate to write to the CFMEU to seek their views in relation to the application and sought their response by Wednesday, 25 January 2017. The CFMEU did not provide its views in relation to the application.

[7] Based on the material contained in the statutory declaration filed with the application, and in consideration of s.226(a), I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] In correspondence to my Chambers on 23 January 2017, the Company advised that for existing employees, it intended to maintain over-award conditions arising under the Agreement that are more beneficial than the relevant Modern Award for the duration of their employment. These over-award conditions include a 36 hour ordinary working week and the payment of income protection insurance.

[9] In light of the over-award conditions for existing employees, I did not consider it necessary to convene a hearing to determine the application.

[10] I am satisfied on the material before me that the Company properly communicated with employees the proposed termination of the Agreement. It was declared for the Company that relevant employees were invited to communicate their views and that no concerns, queries or objections in relation to the proposed termination were received.

[11] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[12] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[13] The termination will take effect from today, 1 February 2017.

COMMISSIONER

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<Price code A, CA727 of 2003,  PR589504>