Shelf Subsea Pty Ltd

[2017] FWCA 2012

[2017] FWCA 2012

FAIR WORK COMMISSION

decision

Fair Work Act 2009

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

Shelf Subsea Pty Ltd

(AG2017/365)

Cal Dive International (Australia) Pty Ltd Inshore Diving Enterprise Agreement 2013

Diving services
Deputy President Bull	PERTH, 10 APRIL 2017

Application for termination of the Cal Dive International (Australia) Pty Ltd Inshore Diving Enterprise Agreement 2013.

1. An application was made by Shelf Subsea Pty Ltd (the applicant) under s. 225 of the Fair Work Act 2009 (the Act) to terminate the Cal Dive International (Australia) Pty Ltd Inshore Diving Enterprise Agreement 2013 (the Agreement).

Background

1. The Agreement was approved by the Fair Work Commission on 7 November 2013 to operate from 14 November 2013 with a nominal expiry date of 13 November 2016.

1. Shelf Subsea has taken over the operations of Cal Dive International (Australia) Pty Ltd. An Order relating to the transfer was issued on 16 October 2015.

1. The Agreement applies to the Applicant and to employees engaged by the Applicant throughout Australia in the classifications set out in Clause 7 - Classifications and Wage Rates of this Agreement.  The covered employees are engaged in the inshore diving operations of the Applicant.

1. The Applicant declared in its Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date (F24C) that it no longer operates in the inshore diving industry and that there are no employees covered by the Agreement.  Further, the Applicant declared that it has no intention to engage new employees that would be otherwise covered by the Agreement, or to bargain for a replacement agreement.   

1. 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.”

Consideration

1. The Agreement has passed its nominal expiry date.

1. The applicant, being the employer covered by the Agreement, has the necessary standing to bring the application under s.225(a) of the Act.

1. Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest.  There is nothing before me which raises public interest considerations which might weigh against termination of the Agreement.

1. With respect to the views of parties, the applicant is the employer. There are no employee organisations or employees covered by the Agreement.

1. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

1. I am satisfied that the requirements under s.225 and 226 of the Act have been met. I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to approve the termination of the Agreement.

1. Accordingly, an Order [PR591733] to this effect will be issued ordering that the Agreement be terminated with effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A,  PR591732>