Programmed Integrated Workforce Limited

[2017] FWCA 4399

[2017] FWCA 4399

FAIR WORK COMMISSION

DECISION

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

Programmed Integrated Workforce Limited
(AG2017/3575)

PROGRAMMED INTEGRATED WORKFORCE (INTEGRATED) - BUS DRIVERS AGREEMENT 2012

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BINET	PERTH, 24 AUGUST 2017

Application for termination of the Programmed Integrated Workforce (Integrated) - Bus Drivers Agreement 2012.

[1] Programmed Integrated Workforce Limited (Integrated)has applied (Application) for the Programmed Integrated Workforce (Integrated) - Bus Drivers Agreement 2012 (Agreement) to be terminated pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 1 July 2015.

[3] The parties to the Agreement are Integrated and employees of Integrated engaged as bus drivers assigned to work for BHP Billiton (Employees).

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

[5] In support of the Application, Integrated filed a Statutory Declaration by Carina Winstanley, HR Advisor at Integrated (Winstanley Declaration). The Winstanley Declaration states that no Employees are covered by the Agreement, and that there are no circumstances in which Employees would be covered by the Agreement in the future.

[6] On 23 August 2017, Ms Winstanley advised in correspondence to Chambers that the Agreement was created for a scope of work specific to their client and to a particular site. As the contract for this scope of work ended in approximately 2013, Ms Winstanley submits that there would be no circumstances in which Integrated would seek to engage any employees under the Agreement, and there have been no Employees engaged under the Agreement since this time.

[7] Section 225 of the FW Act states:

“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.”

[8] Section 226 of the FW Act states:

“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.”

[9] The leading authority with respect to applications made pursuant to section 225 is a decision of a Full Bench of the FWC in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd (Aurizon) [2015] FWCFB 540. The Full Bench remarked at [126]:

“The legislative scheme therefore enables and facilitates good faith bargaining for an enterprise agreement. It also facilitates the making of enterprise agreements but does not mandate that result. Once an enterprise agreement is made and approved by the Commission, it seems clear that the legislative scheme does not intend that such agreements operate in perpetuity. Agreements have a finite nominal life. At the end of the nominal life of an agreement, bargaining parties may bargain for a new agreement utilising all of the tools available under the Act; or a person to whom an agreement applies may take steps to bring the agreement to an end in accordance with the provisions of the Act; or both may occur.”

[10] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[11] Based on the materials filed by Integrated, in consideration of section 226(a), and having regard to the decision in Aurizon, there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

[12] Pursuant to section 225 of the Act, and having considered the material before me relevant to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

[13] The termination will come into effect from 24 August 2017.

DEPUTY PRESIDENT

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