Neptune Diving Services Pty Ltd

[2018] FWCA 251

[2018] FWCA 251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Neptune Diving Services Pty Ltd
(AG2017/6602)

Diving services
DEPUTY PRESIDENT BULL	PERTH, 29 JANUARY 2018

Application for termination of the Neptune Diving Services Pty Ltd Gorgon LNG Inshore Diving Project Agreement 2013.

[1] An application has been made by Neptune Diving Services Pty Ltd (the Applicant) under s. 225 of the Fair Work Act 2009 (the Act) to terminate the Neptune Diving Services Pty Ltd Gorgon LNG Inshore Diving Project Agreement 2013 (the Agreement).

[2] The Agreement was approved by the Fair Work Commission on 21 January 2014, to operate from 28 January 2014 with a nominal expiry date of 31 December 2016.

[3] The Agreement applies to the casual employees of the Applicant, performing work at Barrow Island for the Gorgon Barrow Island Development Project (Project); the Agreement covers the downstream component of the Project.

[4] In the Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date (F24C) dated 20 December 2017, Mr Massimo Delia (Mr Delia), General Manager, declared on behalf of the Applicant that termination of the Agreement is appropriate as the Project and work is now completed. The Project is no longer in the developing stage, having moved into an operational phase as of March 2016.

[5] Mr Delia states the rates of pay and other conditions reflect the development stage and are out of sync with the operational phase of the Project and current market conditions.

[6] Mr Delia also states in his statutory declaration that the casual employees employed by the Applicant have agreed to be covered by common law contracts and that those terms are better off overall than the Professional Diving Industry (Industrial) Award 2010. The Applicant submitted in support of its application, signed statements from ten employees confirming their acceptance and support of the application.

[7] 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.”

Consideration

[8] The Agreement has passed its nominal expiry date.

[9] The Applicant, being the employer covered by the Agreement, has the necessary standing to bring the application under s.225(a) of the Act.

[10] Based on the material contained in the Applicant’s statutory declaration filed with the application, 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 weigh against termination of the Agreement.

[11] With respect to the views of parties, the Applicant is the employer.

[12] Mr Delia, on behalf of the Applicant, stated in his statutory declarationthat the employees covered by the Agreement supported the termination application, and 10 out of the 13 employees signed a statement confirming this.

[13] There are no employee organisations covered by the Agreement.

[14] Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[15] I am satisfied that the requirements under s.225 and 226 of the Act have been met. I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to approve the termination of the Agreement.

[16] Accordingly, an Order [PR599484] to this effect will be issued ordering the Agreement be terminated with effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE406273  PR599483 >