North West Crewing Pty Ltd
[2024] FWCA 640
•16 FEBRUARY 2024
| [2024] FWCA 640 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
North West Crewing Pty Ltd
(AG2024/208)
NORTH WEST CREWING PTY LTD - ENTERPRISE AGREEMENT 2018
| Maritime industry | |
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 16 FEBRUARY 2024 |
Application for termination of the North West Crewing Pty Ltd - Enterprise Agreement 2018
On 2 February 2024 North West Crewing Pty Ltd (the Applicant) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the North West Crewing Pty Ltd – Enterprise Agreement 2018 (the Agreement). The expiry date for the Agreement was 25 June 2022.
The Applicant is an employer party to the Agreement. The application was not lodged within 14 days of the termination being agreed to by the employees of the Applicant, as required by s.222(3)(a) of the Act. In addressing this matter, the Applicant submitted as follows:
The 2018 Agreement has been replaced by the North West Crewing Pty Ltd Enterprise
Agreement 2023 (2023 Agreement) which operates from 31 January 2024. The 2023
Agreement states at clause 3(f): “Consistent with s.222 of the FW Act, the Parties agree to terminate the North West Crewing Pty Ltd - Enterprise Agreement 2018 and the Sea Crewing Australia Pty Ltd Enterprise Agreement 2017 upon approval of this Agreement by FWC.”
The 2023 Agreement was made on 20 December 2023, approved by the Fair Work
Commission on 24 January 2024 and commences operation on 31 January 2024.
The parties agreed to terminate the 2018 Agreement by way of the vote on the 2023
Agreement which took place on 20 December 2023. The termination application was contingent on the approval of the 2023 Agreement.
The application for termination of the 2018 Agreement is being lodged within 14 days of the Fair Work Commission’s approval of the 2023 Agreement and within 14 days of the 2023 Agreement commencing operation.
The termination applications could not be lodged prior to the Fair Work Commission’s approval of the 2023 Agreement as this would have had the practical effect of employee’s technically reverting back to the underpinning modern award in the intervening period.”
Section 222(3)(b) of the Act provides the Fair Work Commission (FWC) with the ability to extend the 14 day lodgement period if it considers that it is fair to do so. In the circumstances I find that it is fair to extend the lodgement period to 2 February 2024 and as such the application has been made within the required time period.
Having examined the material submitted by the Applicant, I am satisfied that the requirements of s.220(2)(a) and (b) of the Act with respect to the voting process have been met. I am also satisfied that a majority of employees who cast a valid vote approved the termination as per s.221(1) of the Act and I have no reasonable grounds for believing that the employees have not agreed to the termination.
As there are two employee organisations covered by the Agreement, s223(d) of the Act is relevant. The Australian Maritime Officers Union (the AMOU) advised that it did not oppose the termination. The Australian Institute of Marine and Power Engineers (the AIMPE) opposed the termination. I invited the AIMPE to make submissions on why it opposed termination and those submissions were as follows:
“The Applicants own Form 24 identifies an employees (sic) covered by the Agreement – further, there is no need to terminate the old North West Crewing agreement as it sits in quite (sic) abeyance superseded by the 2023 Agreement, therefore AIMPE contend the need to terminate is without merit.”
The Applicant’s Form F24A, at section 2.4, outlines that there were employees covered by the Agreement who voted on its termination and it is clear that a majority of those employees voted to terminate the Agreement. As this application is made pursuant to s.222 of the Act, it is necessary, as per s.220, that there had been a such a vote. It is also relevant that those employees are no longer covered by the Agreement as it has been replaced by the 2023 Agreement. Section 58 of the Act provides as follows, with my emphasis:
“58 Only one enterprise agreement can apply to an employee
Only one enterprise agreement can apply to an employee
Only one enterprise agreement can apply to an employee at a particular time.
General rule—later agreement does not apply until earlier agreement passes its nominal expiry date
(2) If:
(a)an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and
(b)another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and
(c)subsection (which deals with a supported bargaining agreement replacing a single enterprise agreement) does not apply;
then:
(d)if the earlier agreement has not passed its nominal expiry date:
(i)the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and
(ii)the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or
(e)if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.”
As a consequence, there are in fact no employees covered by the Agreement and the Agreement, having been replaced at a time after its expiry date, can never apply to those employees again. As such, I am not persuaded that the submissions of the AIMPE are such that I should refuse to terminate the Agreement in circumstances where the requirements of the Act have been met and the AMOU does not oppose the termination.
The application to terminate is approved and the termination will take effect from 16 February 2024.
DEPUTY PRESIDENT
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