MODEC Management Services Pte Ltd T/A MODEC Management Services

[2019] FWCA 2095

[2019] FWCA 2095

FAIR WORK COMMISSION

DECISION

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

MODEC Management Services Pte Ltd T/A MODEC Management Services
(AG2019/744)

MODEC MANAGEMENT SERVICES PTE LTD MODEC VENTURE 11 FPSO AIMPE AGREEMENT 2014

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 9 APRIL 2019

Application for termination of the MODEC Management Services Pte Ltd MODEC Venture 11 FPSO AIMPE Agreement 2014 – Agreement terminated

[1] MODEC Management Services Pte Ltd (MODEC)has made an application (Application) to the Fair Work Commission (FWC) to terminate the MODEC Management Services Pte Ltd MODEC Venture 11 FPSO AIMPE Agreement 2014 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 31 December 2016.

[3] The parties to the Agreement are MODEC and employees engaged in classifications contained in clause 15 of the Agreement and trainees engaged in accordance with clause 23 of the Agreement (Employees).

[4] The Australian Institute of Marine and Power Engineers (AIMPE) are covered by the Agreement.

[5] Section 225 of the FW Act states:

“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.”

[6] Section 226 of the FW Act states:

“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.”

[7] In support of the Application, MODEC filed a Statutory Declaration by Ms Karen Clarke (Clarke Declaration). According to Ms Clarke there are no employees employed by MODEC who are covered by the Agreement and the MV11 FPSO has been decommissioned and will no longer be in operation for the foreseeable future.

[8] On 21 March 2019, directions were issued with respect to the Application. AIMPE were directed to file an outline of submissions in response to the Application and any evidence on which AIMPE sought to rely by 4pm on Thursday 4 April 2019.

[9] In its response to the directions AIMPE stated that AIMPE does not object to the Application as the Agreement is vessel specific and that it understands that the vessel in question has left the coast to be broken up. AIMPE also expressed confidence that given MODEC’s “long and positive history both in the sector and with” AIMPE that MODEC will enter into negotiations for any new agreement in the manner it has done so in the past.

Consideration

[10] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[11] Based on the material contained in the Clarke Declaration filed with the Application, there is nothing before me that raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the Agreement.

[12] No opposition to the Application was received for, or on behalf, of any employees or the organisation entitled to represent them.

[13] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in section 226 of the Act, the Agreement is terminated.

[14] The termination will come into effect from 9 April 2019.

DEPUTY PRESIDENT

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