RCR O'Donnell Griffin Pty Ltd T/A RCR O'Donnell Griffin

[2017] FWCA 2245

[2017] FWCA 2245

FAIR WORK COMMISSION

DECISION

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

RCR O'Donnell Griffin Pty Ltd T/A RCR O'Donnell Griffin
(AG2017/1372)

ODG HADEN CONSTRUCTION LEGACY WAY PROJECT WORKS AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 3 MAY 2017

Application for termination of the ODG Haden Construction Legacy Way Project Works Agreement 2013.

[1] On 20 April 2017, RCR O'Donnell Griffin Pty Ltd (the Company) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the ODG Haden Construction Legacy Way Project Works Agreement 2013 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration in support of the termination. The statutory declaration was not properly sworn, however a properly sworn declaration made by Ms Anne Tait, Divisional HR Manager of the Company was filed and served on 2 May 2017.

[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are employee organisations covered by the Agreement.

[4] On 20 April 2017, my Associate wrote to the AMWU and CEPU to seek their views in relation to the application.

[5] The AMWU advised they are of the opinion that there is no need to terminate the expired Agreement, however they did not oppose the application. The CEPU advised that it did not intend to make submissions in relation to the application.

Relevant legislation

[6] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which are as follows:

‘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 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.’

Consideration

[7] Based on the material contained in the statutory declaration, in consideration of s.226(a) I am satisfied 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.

[8] As stated in the statutory declaration, there are no employees covered by the Agreement.

[9] 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.

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

[11] The termination will take effect from 3 May 2017.

COMMISSIONER

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