Sayer Civil Pty Ltd T/A Sayer Civil Pty Ltd

[2021] FWCA 493

[2021] FWCA 493

FAIR WORK COMMISSION

DECISION

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

Sayer Civil Pty Ltd T/A Sayer Civil Pty Ltd
(AG2020/4121)

SAYER CIVIL PTY LTD CIVIL CONSTRUCTION ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 3 FEBRUARY 2021

Application for termination of the Sayer Civil Pty Ltd Civil Construction Enterprise Agreement 2015.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Sayer Civil Pty Ltd T/A Sayer Civil Pty Ltd (the Applicant) to terminate the Sayer Civil Pty Ltd Civil Construction Enterprise Agreement 2015 (the Agreement).

[2] The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 30 July 2018.

[3] Sections 225 and 226 of the Act provide:

“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.”

[4] Mr Travis Sayer, Director for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Sayers stated that there are only three (3) employees covered by the Agreement, that the company has no intention of increasing its workforce. Mr Sayer stated that upon termination of the Agreement, all employees would be provided with an Individual Flexibility Arrangement (IFA) underpinned by the Building and Construction General On-site Award 2010. Mr Sayer confirmed in his statement that the employees will not receive a decrease in their current rate of pay as a result of the termination. A comparison table was provided to Chambers demonstrating that the employees would not be worse off under the IFA.

[5] Mr Sayer stated that the Applicant sought to terminate the Agreement as it was not feasible for the Company to continue to engage employees under the Agreement due to current operations. Mr Sayer further stated that all employees who are currently covered by the Agreement were provided with a copy of the F24B and F24C, a summary of the proposed Individual Flexibility Agreement (IFA) terms and an explanation of the reasons of the termination of the Agreement via email on Monday 11 of February 2021. A copy of this email was provided to Chambers.

[6] Correspondence was provided to Chambers demonstrating that the three employees confirmed that they agreed to the termination of the Agreement.

[7] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 3 February 2021.

[8] I Order accordingly.

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