SRG Services (Western) Pty Ltd T/A SRG Services (Western) Pty Ltd

[2024] FWC 1338

[2024] FWC 1338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

SRG Services (Western) Pty Ltd T/A SRG Services (Western) Pty Ltd

(AG2024/1358)

SRG SERVICES (WESTERN) PTY LTD REFRACTORY ENTERPRISE AGREEMENT

Refractory Industry

DEPUTY PRESIDENT ANDERSON ADELAIDE, 21 MAY 2024

Application for termination of the SRG Services (Western) Pty Ltd Refractory Enterprise Agreement 2019 - 2023

1. On 23 April 2024 SRG Services (Western) Pty Ltd T/A SRG Services (Western) Pty Ltd (SRG Services, the employer or the applicant) made an application pursuant to s 225 of the Fair Work Act 2009 (Cth) (FW Act) to terminate the SRG Services (Western) Pty Ltd Refractory Enterprise Agreement 2019 – 2023 (the Agreement).[1] The Agreement passed its nominal expiry on 17 July 2023.

1. The President has allocated this application to me for determination, subject to s 615A (3) (concerning when a full bench is required to determine such applications).

1. The application was supported by a Form F24C statutory declaration of Ms Skye Britton, Human Resources Manager East and New Zealand, which declared that there were no employees covered or likely to be covered by the Agreement, and as such, that its termination would have no adverse effect on any employees.

1. In its application, the employer stated that there were no employee organisations covered by the agreement.

1. On 30 April 2024 I issued directions and listed this matter for hearing. The Notice of Listing and Directions were sent to representatives of SRG Services.

1. In response to my directions, SRG filed a further statutory declaration of Ms Skye Britton dated 10 May 2024 to the effect that the Directions and Notice of Listing were not served on employees or an employee association as no employees are employed under the agreement and no employee association is covered by it.

1. I heard the matter on 21 May 2024. The applicant appeared. There were no other appearances.

Legislative provisions

1. The relevant provisions of the FW Act are as follows:[2]

“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.”

226     Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)       the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)       all of the following apply:

(i)           the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)          the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)         if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)     However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)       This subsection covers a termination of the employment of an employee:

(a)       at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)       because of the insolvency or bankruptcy of the employer.

(3)       In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)       the employees (unless there are no employees covered by the agreement);

(b)       each employer;

(c)       each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)       In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)       whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)       whether bargaining for the proposed enterprise agreement is occurring; and

(c)       whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)       In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

227     When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

1. I am satisfied that SRG Services has standing to make this application as it is an employer covered by the Agreement.

1. At the hearing, SRG Services submitted that:

• the Agreement covered persons engaged in refractory installation and related work at the company’s refractory operations in Whyalla, South Australia;

• a contract for the performance of this work at the Whyalla steelworks has concluded and has not been renewed;

• the employer has not employed persons under the Agreement since March 2024 and is not likely to do so; and

• the termination application has been made because of the above and because the employer does not consider it desirable to have an industrial instrument continuing to exist which serves no practical purpose and is not likely to do so.

1. Based on the material contained in the statutory declarations of Ms Britton, and taking into consideration s 226(1)(b), I am satisfied that the agreement does not, and is not likely to, cover any employees.

1. Having regard to s 226(3)(b), the views of the employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated.

1. There are no employee organisations covered by the agreement who would oppose its termination.

1. Section 226(2) is not relevant as termination of the Agreement would not give rise to, nor does it arise from, the termination or intended termination of employment of a person covered by the Agreement on the ground of the employer’s redundancy or insolvency.

1. The considerations at s 226(4) are not relevant as bargaining is not occurring with respect to the Agreement.

1. I am satisfied that there are no other relevant matters to take into account (s 226(5)) in deciding whether to terminate the Agreement.  

1. Having regard to s 226(1A) of the FW Act, I am satisfied that it is appropriate in all the circumstances to do so. Accordingly, I must terminate the Agreement.

Conclusion

1. The application to terminate the Agreement is approved.

1. It will take effect from 11.59pm on 21 May 2024. I issue an order to this effect in conjunction with this decision.[3]

DEPUTY PRESIDENT

Appearances:

Ms I Tuhura, with Ms J Bourke and Ms S Britton assisting, of and on behalf of SRG Services (Western) Pty Ltd T/A SRG Services (Western) Pty Ltd

Hearing details:

2024,
Adelaide (by video):
21 May.

[1] [2019] FWCA 5378; see s 53(1) FW Act

[2] Schedule 1 Part 12 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (commencement 7 December 2022)

[3] PR775228

Printed by authority of the Commonwealth Government Printer

<PR775227>