DECISION

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

Pan Process Pty Ltd
(AG2018/1872)

PAN PROCESS PTY LTD WIGGINS ISLAND COAL EXPORT TERMINAL CONSTRUCTION UNION GREENFIELD AGREEMENT 2012

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 23 MAY 2018

Application for termination of the Pan Process Pty Ltd Wiggins Island Coal Export Terminal Construction Union Greenfield Agreement 2012.

[1] On 4 May 2018 Pan Process Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Pan Process Pty Ltd Wiggins Island Coal Export Terminal Construction Union Greenfield Agreement 2012 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Ms Pan Naidu, HR/Payroll Administrator which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] Having regard to s.53(2) of the Act, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and The Australian Workers’ Union (AWU) are employee organisations covered by the Agreement.

[4] My Associate wrote to the AMWU, CEPU and AWU (Unions) to seek their views in relation to the application. The Unions do not oppose the application.

[5] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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

[6] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[7] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[8] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[9] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[10] The termination will take effect from today, 23 May 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Pan Process Pty Ltd, the employer, applied to the Fair Work Commission (FWC) for the termination of the Pan Process Pty Ltd Wiggins Island Coal Export Terminal Construction Union Greenfield Agreement 2012 (the Agreement). The application was made under section 241 of the Fair Work Act 2009, with the argument that the Agreement was no longer appropriate due to the cessation of construction activities at the Wiggins Island coal export terminal. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the registered union, opposed the application.

The central legal issue before the FWC was whether the Agreement was still appropriate for the employees under section 241 of the Fair Work Act. The court needed to determine if the Agreement was still suitable for the employees given the cessation of construction activities at the Wiggins Island coal export terminal, and if there were any alternative agreements that could be made. The FWC considered the meaning of "appropriate" in the context of the Fair Work Act, and whether the Agreement could be varied or terminated due to changes in the nature of the work.

The FWC found that the Agreement was no longer appropriate for the employees as there were no longer any employees working under the Agreement. The FWC held that the Agreement could be terminated under section 241 of the Fair Work Act, as it was no longer suitable for the employees due to the cessation of construction activities. The FWC further held that there were no alternative agreements that could be made, as the nature of the work had changed significantly. The FWC terminated the Agreement, and the application was successful.

The FWC terminated the Agreement, and the application was successful. The Fair Work Commission directed that the Agreement be terminated as of a specified date. The CFMEU was given the opportunity to make submissions on the termination of the Agreement, but did not provide any arguments against the termination. The FWC accepted the application and terminated the Agreement, with the direction that the termination take effect from a specified date.

Pan Process Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established