Onslow Labour Hire Pty Ltd T/A Onslow Labour Hire

[2016] FWCA 4504

[2016] FWCA 4504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Onslow Labour Hire Pty Ltd T/A Onslow Labour Hire
(AG2016/1735)

ONSLOW LABOUR HIRE - ENTERPRISE AGREEMENT - 2012

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 11 JULY 2016

Application for termination of the Onslow Labour Hire - Enterprise Agreement - 2012.

[1] This decision concerns an application made by Onslow Labour Hire Pty Ltd T/A Onslow Labour Hire (the applicant) for the termination of the Onslow Labour Hire - Enterprise Agreement - 2012 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The applicant has provided in support of its application a statutory declaration from Mr Jason Varcoe (Mr Varcoe) who is the General Manager of the applicant.

[6] Mr Varcoe explains that the Agreement had a nominal expiry date of 27 June 2016 and that on 24 June 2016 there was a transfer of employment between the applicant and NTC Contracting Pty Ltd (NTC) consistent with sections 22(7) and 22(8) of the Act.

[7] The 39 affected employees were notified by letter and told that all existing arrangements would remain, all entitlements would be transferred and service with the applicant would be recognised for all purposes by NTC. The letter also stated following termination of the Agreement the NTC Contracting - Enterprise Agreement – 2015 [AE417404] (the NTC Agreement), which has an expiry date of 11 January 2020, would apply.

[8] The NTC Agreement is almost identical to the Agreement except at clause 7 where the NTC Agreement has higher rates. Employees were invited by the applicant to ask questions or raise any concerns. No employee has indicated to the applicant they have any objection.

[9] The applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[10] I am satisfied that termination of the Agreement is not contrary to the public interest.

[11] Taking into account the views of the employer and accepting the applicant’s statement that none of the 39 affected employees object to this application, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[12] Accordingly, the Onslow Labour Hire - Enterprise Agreement – 2012 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AE895012  PR582472>