Skilled Group Limited

[2017] FWCA 661

[2017] FWCA 661

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
(AG2016/8044)

SKILLED GROUP LTD PORT OF HASTINGS MARITIME MAINTENANCE AGREEMENT 2008-2011

Stevedoring industry
DEPUTY PRESIDENT BINET	PERTH, 9 FEBRUARY 2017

Application for termination of the SKILLED Group Ltd Port of Hastings Maritime Maintenance Agreement 2008-2011.

[1] Skilled Group Limited (Skilled Group)made an application (Application) to the Fair Work Commission (FWC) to terminate the Skilled Group Ltd Port of Hastings Maritime Maintenance Agreement 2008-2011 (Agreement).

[2] The Agreement has a nominal expiry date of 28 February 2011.

[3] Skilled Group is the employer covered by the Agreement.

[4] The Maritime Union of Australia (MUA) is an employee organisation covered by the Agreement.

[5] For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

[6] Section 226 of the FW Act states:

“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.”

[7] Skilled Group has filed a Statutory Declaration by Ms Jenna Cuthbertson, Workplace Relations Manager (Cuthbertson Statutory Declaration), which submits that there are no employees covered by the Agreement and there are no circumstances where any employees would be covered by the Agreement in the future.

[8] On 10 January 2017, directions were issued to Skilled Group and the MUA which directed the MUA to file a response to the Application and any evidence on which it sought to rely.

[9] By email to the FWC on 31 January 2017, the MUA advised that it did not wish to object to the Application nor seek to be heard in respect of the Application.

Consideration

[10] Based on the material that is before me (including the Application, the Cuthbertson Statutory Declaration and the email from the MUA) and in the absence of any evidence to contrary, I am satisfied that the termination of the Agreement is not contrary to the public interest and that it is appropriate to terminate the Agreement.

[11] Accordingly, the Agreementis terminated. The termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

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<Price code A, AC313187, AC313558  PR589876>