Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd

[2018] FWCA 2809

[2018] FWCA 2809

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

Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd
(AG2018/1580)

STOWE AUSTRALIA COLONGRA GAS TURBINE PROJECT AGREEMENT

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 21 MAY 2018

Application for termination of the Stowe Australia Colongra Gas Turbine Project Agreement.

[1] On 20 April 2018 Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd (the Employer) applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Stowe Australia Colongra Gas Turbine Project Agreement (the Agreement). The Agreement has passed its nominal expiry date.

[2] On 9 May 2018 the Employer was advised by my Associate that as the Agreement is a collective agreement-based transitional instrument, the application would more appropriately be made under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).

[3] On 16 May 2018 the Employer sought leave to amend the application so that it is made under Schedule 3, Item 6 of the Transitional Act.

[4] Section 586 of the Act affords the Commission with a wide discretion to amend an application and I consider it appropriate to do so. The application is amended so that it is made in accordance with Schedule 3, Item 16 of the Transitional Act.

[5] The application is supported by a statutory declaration from Mr Mick Pawelko, Chief Operating Officer/Director which declared, amongst other things, that there are no employees who are covered by the Agreement.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) are employee organisations covered by the Agreement. The CEPU and CFMMEU do not oppose the application.

Legislative provisions

[7] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[8] Chapter 2, Part 2-4, Division 7, Subdivision D 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.

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.

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

[9] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[10] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[11] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[12] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[13] The termination will take effect from today, 21 May 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AC317137  PR607219>