Qube Bulk Pty Ltd

[2023] FWCA 3165

[2023] FWCA 3165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Qube Bulk Pty Ltd

(AG2023/3435)

Road transport industry
COMMISSIONER SCHNEIDER	PERTH, 29 SEPTEMBER 2023

Application for termination of the QUBE BULK PTY LTD PORT HEDLAND SHED SERVICES AGREEMENT 2016

1. Qube Bulk Pty Ltd (the Applicant) has filed an application pursuant to section 225 of the Fair Work Act 2009 (the Act) to terminate the Qube Bulk Pty Ltd Port Hedland Shed Services Agreement 2016 (the Agreement) after its nominal expiry date.

1. The Agreement is a single enterprise agreement, and its nominal expiry date was 6 April 2020.

1. Section 225 and 226 of the Act relevantly provides:

“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     Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)       the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)       all of the following apply:

(i)           the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)          the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)         if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)     However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)       This subsection covers a termination of the employment of an employee:

(a)       at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)       because of the insolvency or bankruptcy of the employer.

(3)       In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)       the employees (unless there are no employees covered by the agreement);

(b)       each employer;

(c)       each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)       In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)       whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)       whether bargaining for the proposed enterprise agreement is occurring; and

(c)       whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)       In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. The Form F24C Declaration, signed by Ms Brooke McNamara (Ms McNamara), the National HR Advisor for the Applicant, states that there are no employees covered by the Agreement.

1. Ms McNamara states that the employer has not employed any employees under the Agreement for over 12 months and has no intention of employing anyone under the Agreement in the future.

1. The Form F24C provided that, as the now expired Agreement does not cover nor apply to any employee of the Applicant, the Agreement is no longer relevant to the operations of the Applicant.

1. Ms McNamara states that terminating the Agreement will not have any effect on employees of the Applicant as provided in the explanations above.

1. Based on the declaration and submissions of the Applicant and Ms McNamara, I am satisfied that the Agreement does not, and is not likely to, cover any employees, and that the requirement of section 226(1)(b) of the Act is therefore met.

1. I am satisfied that it is appropriate, in all the circumstances, to terminate the Agreement, and I do so.

1. The termination will operate from 29 September 2023.

1. I so Order.

COMMISSIONER

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

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