Sea Crewing Australia Pty Ltd
[2024] FWCA 711
•23 FEBRUARY 2024
| [2024] FWCA 711 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Sea Crewing Australia Pty Ltd
(AG2024/206)
SEA CREWING AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2017
| Maritime industry | |
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 23 FEBRUARY 2024 |
Application for termination of the Sea Crewing Australia Pty Ltd Enterprise Agreement 2017
An application pursuant to s225 of the Fair Work Act (Cth) (the FW Act) has been made by Sea Crewing Australia Pty Ltd (the Applicant) to terminate the Sea Crewing Australia Pty Ltd Enterprise Agreement 2017 (the Agreement). In the application, the Applicant advised that the entity Sea Crewing Pty Ltd no longer employs any employees and that the work previously performed by employees of Sea Crewing Pty Ltd is undertaken by employees of North West Crewing Pty Ltd and their employment is covered by the North West Crewing Enterprise Agreement, which was approved by the Commission on 24 January 2024.
Section 225 of the Act provides 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.”
The Agreement has passed its nominal expiry date of 17 March 2021. The Applicant is an employer covered by the Agreement and has standing to make the application as per s225(a).
The Applicant has provided a statutory declaration stating that the Agreement does not cover any employees.
The criteria for termination of an agreement are set out in s226 of the FW Act, the relevant parts of which is as follows:
“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).
(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.”
The Agreement covers the Australian Institute of Marine and Power Engineers (the AIMPE), the Australian Maritime Officers’ Union (the AMOU) and the Construction, Forestry and Maritime Employees’ Union (CFMEU). The CFMEU and the AIMPE indicated that they did not oppose the proposed termination. Despite several attempts my Chambers was not able to elicit a response from the AMOU on the issue and as such I have resolved that given a majority of employee organisations covered by the Agreement do not oppose termination I will accept that as the view of the employee organisations. I am satisfied that as per s226(1)(b) the Agreement does not cover and is not likely to cover any employees. I am not aware of any other relevant matters that need to be considered and I am satisfied that it is appropriate in all of the circumstances to terminate the Agreement and such termination shall take effect from 23 February 2024.
DEPUTY PRESIDENT
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