Skilled Group Ltd

[2018] FWCA 232

[2018] FWCA 232

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 Ltd

(AG2017/5718)

CFMEU and SKILLED Group Ltd Enterprise Agreement 2008

Tasmania
Deputy President Barclay	HOBART, 17 JANUARY 2018

Application for termination of the CFMEU and SKILLED Group Ltd Enterprise Agreement 2008.

1. The Applicant has applied for the termination of the the CFMEU and SKILLED Group Ltd Enterprise Agreement 2008 (the Agreement).

1. The Agreement was made prior to the commencement of the Fair Work Act 2009 (the Act).  By virtue of the provisions of the  Fair Work (Transitional and Consequential Amendwments) Act 2009 the Application is governed by sections 225 and 226 of the Act/ Those provisions are in the following terms:

225. 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. 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.

1. The nominal expiry date for the Agreement is 15 October 2008. Accordingly the Applicant is entitled to apply for the termination of the Agreement.

1. The Agreement related to the Applicant as the only employer and all employees who may have been covered by the Agreement were represented by the CFMEU.

1. The Applicant deposed in the statutory declaration accompanying the Application that there were no employees covered by the Agreement and that there were no circumstances in which employees may be covered by the Agreement in the future. That is, termination of the Agreement would not affect the parties to it.

1. The CFMEU has confirmed[1] that there are no employees working under the Agreement. The employees who formerly worked under the agreement (who I infer were labour hire employees) had their employment transferred to Fonterra. Accordingly the Australian Workers Union consented to the termination of the Agreement.

1. On 20 December 2017 the parties agreed that a hearing of the Application was not necessary and the matter could be dealt with in chambers.

1. It is clear that it is not contrary to the public interest to terminate an agreement which has no application to employees employed in a workplace. The employer and the employee organisation which represents the employees formerly covered by the agreement consent to the termination of the Agreement.

1. Accordingly I order that the Agreement is terminated. Pursuant to s 227 of the Act the termination operates from 20 December 2017.

DEPUTY PRESIDENT

[1] By email to the Commission dated 28 November 2017

Printed by authority of the Commonwealth Government Printer

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