Skilled Group Limited

[2017] FWCA 55

[2017] FWCA 55

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Skilled Group Limited
(AG2016/7705)

SKILLED GROUP LTD. (FEA TIMBER) EMPLOYEE COLLECTIVE WORKPLACE AGREEMENT 2008

Clerical industry
DEPUTY PRESIDENT BINET	PERTH, 6 JANUARY 2017

Application for termination of the SKILLED Group Ltd. (FEA Timber) Employee Collective Workplace Agreement 2008.

[1] Skilled Group Limited (Skilled Group)has applied (Application) for the SKILLED Group Ltd. (FEA Timber) Employee Collective Workplace Agreement 2008 (Agreement) to be terminated pursuant to section 225 of the Fair Work Act 2009 (FW Act).

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

[3] The Agreement has a nominal expiry date in 2011 in accordance with clause 1.3.3 of the Agreement which states that, “This Agreement will come into effect on the seventh day after the date of notice from the Workplace Authority Director, and will have a nominal expiry date of 3 years thereafter.”

[4] The Agreement is a single-business agreement certified pursuant to the Workplace Relations Act 1996 (Cwth). By virtue of Part 1 of Schedule 3of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwth) (Transitional Act) the Agreement is a ‘collective agreement-based transitional instrument’ for the purposes of Schedule 3 of the Transitional Act. Item 16 of the Transitional Act provides that:

“16 Collective agreement-based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) 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.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement's nominal expiry date is taken to be the end of the period of the agreement.”

[5] Section 225 of the FW Act states:

“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.”

[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 filed a Statutory Declaration by Ms Jenna Cuthbertson, Workplace Relations Manager (Cuthbertson Statutory Declaration), in which Ms Cuthbertson gave sworn evidence 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] In relation to the effect termination of the Agreement would have on Skilled Group or any of its employees the Cuthbertson Statutory Declaration submits that there would be no effect on Skilled Group or the employees represented as there are no employees covered by the Agreement.

Consideration

[9] In the absence of any evidence to the contrary, I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] The view of the only party covered by the Agreement, Skilled Group, supports the termination of the Agreement.

[11] Based on the material that is before me, I am satisfied that the termination of the Agreement would not have any adverse effect on Skilled Group and any of its employees.

[12] Taking into account the above, I consider in the circumstances that it is appropriate to terminate the Agreement.

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

DEPUTY PRESIDENT

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