Skilled Maritime Services Pty Ltd

[2018] FWCA 5930

[2018] FWCA 5930

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 Maritime Services Pty Ltd
(AG2017/6011)

SKILLED MARITIME SERVICES (VICTORIA) CERTIFIED AGREEMENT 2000 - 2003

Port authorities
COMMISSIONER GREGORY	MELBOURNE, 20 SEPTEMBER 2018

Application for termination of the Skilled Maritime Services (Victoria) Certified Agreement 2000 - 2003.

Introduction

[1] Skilled Maritime Services Pty Ltd (“the Applicant”) has made application under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the Transitional Act”) to terminate the Skilled Maritime Services (Victoria) Certified Agreement 2000 - 2003 (“the Agreement”). The application indicates that the Agreement is a collective agreement-based transitional instrument that has passed its nominal expiry date.

[2] The Application is accompanied by a Statutory Declaration from Ms Carina Winstanley, HR Advisor. The Statutory Declaration sets out that “there are no employees covered by this Agreement” 1 and that “there are no circumstances where any employees would be covered by this Agreement in the future.”2

Consideration

[3] As indicated, Skilled Maritime Services Pty Ltd has made application under the Transitional Act to terminate the Agreement. The Transitional Act provides in Item 16 of Schedule 3 that Subdivision D of Division 7 of Part 2 – 4 of the Fair Work Act 2009, which deals with termination of enterprise agreements after their nominal expiry date, also applies in relation to termination of a collective agreement-based transitional instrument that has passed its nominal expiry date.

[4] The relevant provisions are contained in ss. 225, 226, and 227 of the Fair Work Act 2009. Section 225 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.” 3

[5] Sections 226 and 227 continue to state:

“226 When the FWC must terminate an enterprise agreement

•  an application for the termination of an enterprise agreement is made under s. 225, the FWC must terminate the agreement if:

•  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 date specified in the decision to terminate the agreement.” 4

[1] I am satisfied in response that the application has been made by one or more of the employers covered by the Agreement and the Agreement is a collective agreement-based transitional instrument that has passed its nominal expiry date.

[2] I am also satisfied that it would not be contrary to the public interest to terminate the agreement.

[3] In accordance with the provisions contained in ss. 225 and 226 of the Fair Work Act 2009, the Skilled Maritime Services (Victoria) Certified Agreement 2000 - 2003 is terminated and, as provided for in s.227, termination will take effect from the date of this decision, being 20 September 2018.

COMMISSIONER

 1   Statutory Declaration of Carina Winstanley, dated 7 December 2017, [5].

 2   Ibid, [6].

 3   Fair Work Act 2009 (Cth).

 4   Ibid.

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