Skilled Group Limited

[2017] FWCA 6188

[2017] FWCA 6188

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Skilled Group Limited
(AG2017/5654)

SKILLED GROUP LTD ENTERPRISE BARGAINING AGREEMENT 2005

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 23 NOVEMBER 2017

Application for termination of the Skilled Group Ltd Enterprise Bargaining Agreement 2005.

[1] Application has been made by Skilled Group Limited (Skilled) for termination of the Skilled Group Ltd Enterprise Bargaining Agreement 2005 (the agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act) and which has passed its nominal expiry date of 1 September 2008.

Relevant legislative provisions

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The legislative mechanisms by which an enterprise agreement may be varied or terminated are dealt with in Division 7 of Part 2–4 of the Act. Subdivision C of Division 7 sets out the manner in which an enterprise agreement may be terminated by agreement and for the approval of the termination of the enterprise agreement by the Fair Work Commission (Commission).

[4] Subdivision D of Division 7 contains provisions which enable the termination of an enterprise agreement to be terminated after the agreement has passed its nominal expiry date. As earlier indicated, these provisions apply to the Agreement the subject of this application by reason of Item 16 of Schedule 3 of the Transitional Act.

[5] These provisions 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.”

[6] The application included a Statutory Declaration declared by Ms Winstanley, HR Advisor of the Applicant which declared that there are currently no employees covered by the Agreement and there are no circumstances where any employees would be covered by this Agreement in the future.

[7] Construction, Forestry, Mining and Energy Union (the CFMEU) is the employee organisation covered by the agreement. The CFMEU has advised it does not oppose the application.

[8] Section 226 of the FW Act requires that the Fair Work Commission must terminate an agreement if two conditions are met. Firstly, that the Commission is satisfied that it is not contrary to the public interest to terminate the agreement and, secondly, that the Commission considers that it is appropriate to terminate the agreement taking into account all the circumstance.

[9] In all the circumstances I consider it appropriate to terminate the Skilled Group Ltd Enterprise Bargaining Agreement 2005. The application for termination of the agreement is approved and, in accordance with s.227 of the Act, the termination will take effect on and from 23 November 2017.

COMMISSIONER

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