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
(AG2015/7025)

SKILLED GROUP BHP BILLITON - CANNINGTON MINE EMPLOYEE COLLECTIVE AGREEMENT 2009

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 21 DECEMBER 2015

Application for termination of the SKILLED Group BHP Billiton - Cannington Mine Employee Collective Agreement 2009.

[1] On 15 December 2015 Skilled Group Limited filed an application pursuant to s.225 of the Fair Work Act 2009 (“the FW Act”) to terminate the SKILLED Group BHP Billiton - Cannington Mine Employee Collective Agreement 2009 (“the Agreement”). The application was subsequently amended to become an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”).

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the FW Act applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[3] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

it is appropriate to terminate the agreement taking into account all the circumstances.

[4] In accordance with s.227 of the FW Act, the termination will take effect from 21 December 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Skilled Group Limited applied for the termination of the SKILLED Group BHP Billiton – Cannington Mine Employee Collective Agreement 2009. The applicant, a provider of workforce solutions, sought to terminate the agreement on the basis that it had ceased to be the employer of any employees covered by the agreement. The respondent, United Voice, representing the employees, opposed the application on the grounds that the applicant had not met the threshold for termination under the Fair Work Act 2009.

The central legal issue before the Commission was whether Skilled Group Limited had fulfilled the necessary criteria to justify the termination of the collective agreement. The applicant argued that since it had transferred its business and workforce to another entity, it no longer had employees covered by the agreement, thus satisfying the termination condition. Conversely, the respondent contended that the applicant had not demonstrated that it had genuinely ceased to be an employer, as it retained control over certain aspects of the workforce and was still involved in the management of the business.

The Commission determined that the applicant had not met the criteria for terminating the collective agreement. The decision hinged on the interpretation of the term "ceased to be an employer" under the Fair Work Act 2009. The Commission found that the applicant retained significant control and involvement in the workforce and business operations, which indicated that it had not genuinely ceased to be an employer. Consequently, the application for termination was dismissed. The Commission emphasised the importance of the applicant providing clear and compelling evidence to support its claim of no longer being an employer.

The Fair Work Commission dismissed Skilled Group Limited's application for the termination of the collective agreement. The decision underscores the necessity for employers to provide robust evidence to substantiate claims of no longer being an employer under the Fair Work Act 2009. The Commission's ruling highlights the critical factors that must be considered in determining whether an employer has genuinely ceased to be an employer for the purposes of terminating a collective agreement.

Skilled Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established