Skilled Group Limited T/A Skilled Group Limited

[2018] FWCA 7499

[2018] FWCA 7499

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 T/A Skilled Group Limited

(AG2018/6267)

Manufacturing and associated industries
Commissioner Cirkovic	MELBOURNE, 7 DECEMBER 2018

Application for termination of the SKILLED Group – South Australia – Roxby Downs Olympic Dam Certified Agreement 2005.

1. Skilled Group Limited (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the SKILLED Group – South Australia – Roxby Downs Olympic Dam Certified Agreement 2005 (the Agreement).

1. The Agreement came into operation on 25 February 2005 with a nominal expiry date of 25 February 2008.

1. The Applicant filed a statutory declaration of Ms Bree Coram, declared 9 November 2018 (Statutory Declaration).

1. I issued directions on 13 November 2018. The Applicant has complied with these directions.

Legislation

1. Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passed its nominal expiry date. Section 225 is 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.”

1. Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

1. As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to section 225(a) of the Act.

Public Interest

1. In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that:

there are currently no employees covered by the Agreement;

there are no circumstances where any employees would be covered by this Agreement in the future; and

the termination of this Agreement will have no effect on the parties to the Agreement.

1. In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to section 226(a) of the Act, on the basis that no employees are covered by the Agreement.

Views, Circumstances and Likely Effect of Termination

1. There are no employee organisations covered by the Agreement.

1. The Applicant is the employer covered by the Agreement. The Applicant declares in its Statutory Declaration that the termination of the Agreement would have no effect on its circumstances.

1. I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by section 226(b)(i)-(ii) of the Act.

Conclusion

1. For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to section 226 of the Act.

1. An Order will be issued terminating the Agreement with effect from 7 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AG839019  PR703017 >