Neptune Diving Services Pty Ltd

[2018] FWCA 520

[2018] FWCA 520

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Neptune Diving Services Pty Ltd

(AG2017/6240)

NDS Ichthys Inshore Agreement 2013

Diving services
Deputy President Bull	PERTH, 29 JANUARY 2018

Application for termination of the NDS Ichthys Inshore 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 NDS Ichthys Inshore Agreement 2013 (the Agreement).

1. The Agreement was approved by the Fair Work Commission on 2 September 2013, to operate from 9 September 2013 with a nominal expiry date of 8 September 2016.

1. The Agreement applies to diving personnel employed in the classifications set out in clause 4.2 of the Agreement when engaged by the employer to perform inshore diving work relating to the construction of the Project or the construction of any associated infrastructure relating to the Project; the Agreement does not cover any offshore diving work relating to the Project.

1. In the Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date (F24C) dated 12 December 2017, Mr Massimo Delia (Mr Delia), General Manager, declared on behalf of the Applicant that the last inshore diving project relating to the scope of the Agreement was completed in September 2015.  He stated the Applicant does not have any upcoming inshore diving work associated with the coverage of the Agreement.  Mr Delia stated there are no employees covered by the Agreement and no employee organisation is covered by the Agreement.

1. 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

1. The Agreement has passed its nominal expiry date.

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

1. 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.

1. With respect to the views of parties, the Applicant is the employer.  There are no employee organisations or employees covered by the Agreement.

1. 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.

1. 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.

1. Accordingly, an Order [PR599914] 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

<AE403627  PR599818>