Kenny Constructions (Aust) Pty Ltd

[2017] FWCA 5847

[2017] FWCA 5847

FAIR WORK COMMISSION

DECISION

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

Kenny Constructions (Aust) Pty Ltd
(AG2017/4533)

KENNY CONSTRUCTION (AUST) PTY LTD QUEENSLAND AND NORTHERN TERRITORY ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 8 NOVEMBER 2017

Application for termination of the Kenny Construction (Aust) Pty Ltd Queensland and Northern Territory Enterprise Agreement 2014.

[1] On 28 September 2017 Kenny Constructions (Aust) Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Kenny Construction (Aust) Pty Ltd Queensland and Northern Territory Enterprise Agreement 2014 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from the Employer which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The Australian Workers’ Union (AWU) is an employee organisation covered by the Agreement. The AWU does not oppose the application.

[4] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides 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

[5] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the 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.

[6] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[7] 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.

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

[9] The termination will take effect from today, 8 November 2017.

COMMISSIONER

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