Skilled Group Ltd

[2018] FWCA 231

[2018] FWCA 231

The attached document replaces the document previously issued with the above code on 11 January 2018.

The change replaces mentions of the Australian Workers Union with the Construction, Forestry, Mining and Energy Union, Tasmania Branch at paragraphs 4 and 6 on page 2 of the Decision.

Matthew Wilson

Associate to Deputy President Barclay

Dated 17 January 2018

[2018] FWCA 231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Skilled Group Ltd
(AG2017/5719)

SKILLED GROUP LTD / CFMEU COLLECTIVE AGREEMENT 2010 - 2012

Tasmania
DEPUTY PRESIDENT BARCLAY	HOBART, 11 JANUARY 2018

Application for termination of the Skilled Group Ltd / CFMEU Collective Agreement 2010 - 2012.

[1] The Applicant has applied for the termination of the the Skilled Group Ltd / CFMEU Collective Agreement 2010 - 2012 (the Agreement).

[2] The Application is governed by sections 225 and 226 of the Fair Work Act 2009 (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.

[3] The nominal expiry date for the Agreement is 15 September 2012. Accordingly the Applicant is entitled to apply for the termination of the Agreement.

[4] 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 Construction, Forestry, Mining and Energy Union, Tasmania Branch.

[5] 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.

[6] The Construction, Forestry, Mining and Energy Union, Tasmania Branch has confirmed¹ 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 Construction, Forestry, Mining and Energy Union, Tasmania Branch consented to the termination of the Agreement.

[7] 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.

[8] 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.

[9] 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

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