Skilled Group Limited

[2016] FWCA 954

[2016] FWCA 954

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

(AG2015/6976)

SKILLED GROUP LIMITED MT WHALEBACK AGREEMENT

Industries not otherwise assigned

COMMISSIONER HAMPTON ADELAIDE, 12 FEBRUARY 2016

Application for termination of the Skilled Group Limited Mt Whaleback Agreement.

[1]        This decision concerns an application by Skilled Group Limited pursuant to Item 16 of

Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act

2009 (the Transitional Act), and as a consequence, s.225 of the Fair Work Act 2009 (the FW

Act). The application seeks to terminate the Skilled Group Limited Mt Whaleback

1

Agreement.

[2]        The Agreement is a collective agreement-based transitional instrument for the

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purposes of the Transitional Act	with a nominal expiry date of 10 April 2014.
The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“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.”

[2016] FWCA 954

[4] Subdivision D of Division 7 of Part 2-4 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.

226 When FWA 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.”

[5]        This application was accompanied by a statutory declaration of Ms Jenna Cuthbertson,

Regional HR Manager – WA/SA/NT, which addressed the relevant criteria established by

s.226 of the FW Act.

[6]        Ms Cuthbertson has confirmed to the Commission that the Agreement does not cover

any employee and there are no circumstances where any employee would be covered by the

Agreement in the future. This arises, for the most part, from the acquisition of the employer

by another business and changes in, or conclusion of, the project activity concerned.

[7]        I am satisfied that the termination of the Agreement would not be contrary to the

public interest. I am also satisfied that the termination is appropriate having regard to the

likely effect of that action and the circumstances of the employees and the employer.

[2016] FWCA 954

[8]        The termination will take effect from midnight on Friday 12 February 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AC319563 PR577014>

1

The Agreement was originally approved pursuant to the Workplace Relations Act 2006.

2

Item 2(5)(c)(i) of Schedule 3.