Service Stream Limited T/A AMRS (Aust) Pty Ltd

[2016] FWCA 1765

[2016] FWCA 1765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Service Stream Limited T/A AMRS (Aust) Pty Ltd
(AG2016/2129)

AMRS CITIPOWER SPECIAL READERS AND VICTORIAN METER EXCHANGERS AGREEMENT 2008

[AC315759]

Electrical power industry
COMMISSIONER CIRKOVIC	MELBOURNE, 24 MARCH 2016

Application for termination of the AMRS Citipower Special Readers & Victorian Meter Exchangers Agreement 2008.

Introduction

[1] On 19 January 2016, AMRS (Aust) Pty Ltd (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) for the termination of the AMRS Citipower Special Readers & Victorian Meter Exchangers Agreement 2008 (the Agreement).

[2] The Agreement came into operation from the first pay period on or after 21 April 2008 with a nominal expiry date of 21 April 2013.

[3] The Applicant filed a statutory declaration of George Tsiantas, National HR Manager – Energy and Water for the Applicant, declared 19 January 2016 (the Statutory Declaration).

Legislation

[4] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passes its nominal expiry date. Section 225 is 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.”

[5] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

[6] 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 s.225(a) of the Act.

Public Interest

[7] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that there are currently no employees covered by the Agreement and the Electrical Power Industry Award 2010 has higher pay rates than those under the Agreement.

[8] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to s.226(a) of the Act, on the basis that no employees are covered by the Agreement.

Views, Circumstances and Likely Effect of Termination

[9] The Applicant declares in its Statutory Declaration no employees or employee organisations are covered by the Agreement. Therefore, I am unable to take into account the views, circumstances and likely effects for the purpose of s.226(b)(i)-(ii) of the Act.

[10] The Applicant is the employer covered by the Agreement. The Applicant declares in its Statutory Declaration that termination of the Agreement would have no effect on its circumstances.

[11] I consider that it is appropriate to terminate the agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[12] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

[13] An Order PR578193 will be issued giving effect to this Decision, terminating the Agreement with effect from 24 March 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AC315759, PR578192>