TAMS Group Queensland Pty Ltd T/A TAMS Group Queensland Pty Ltd

[2020] FWCA 4946

[2020] FWCA 4946

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

TAMS Group Queensland Pty Ltd T/A TAMS Group Queensland Pty Ltd
(AG2020/2622; AG2020/2623; AG2020/2624; AG2020/2625; AG2020/2627; AG2020/2629; AG2020/2630)

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 15 SEPTEMBER 2020

Application for termination of the WFAM Agreement 2015; Application for termination of the MIPEC Pty Ltd Maintenance Enterprise Agreement 2011; Application for termination of the MIPEC LNG Projects Construction Enterprise Agreement 2011; Application for termination of the MIPEC Pty Ltd Maintenance Enterprise Agreement 2011; Application for termination of the MIPEC LNG Projects Marine Agreement 2015; Application for termination of the MEGSA Agreement 2015; Application for termination of the MIPEC LNG Construction Enterprise Agreement 2015.

[1] On 2 September 2020, TAMS Group Queensland Pty Ltd T/A TAMS Group Queensland Pty Ltd (the Applicant) made seven applications to the Fair Work Commission (the Commission) under s.225 of the Fair Work Act (the Act), seeking the termination of seven enterprise agreements after their nominal expiry dates.

[2] The Agreements are as follows:

•  MIPEC LNG Construction Enterprise Agreement 2015 [AE414305]

•  MIPEC LNG Projects Marine Agreement 2015 [AE415425]

•  WFAM Agreement 2015 [AE415929]

•  MEGSA Agreement 2015 [AE416873]

•  MIPEC Pty Ltd Maintenance Enterprise Agreement 2011 [AE886003]

•  MIPEC LNG Projects Construction Enterprise Agreement 2011 [AE886005]

•  MIPEC LNG Projects Marine Agreement 2011 [AE886162]

[3] I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) and The Australian Workers’ Union (the AWU) were parties covered by several of the Agreements. The AWU and AMWU were included in the correspondence and invited to provide their views regarding the applications for termination of the Agreements.

[4] The seven applications were allocated to my Chambers for consideration. On 3 September 2020, I issued Directions for filing of material in relation to the applications, directing the Applicant to address the relevant criteria for consideration under s.225 of the Act. The Applicant filed submissions on 10 September 2020.

[5] The relevant provisions of the Act are 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.”

[6] Mr Scott McDonald, East Coast Operations Manager for the Applicant, filed seven Form 24C Statutory Declaration in support of the applications to terminate the Agreements. Mr MaDonald stated that the Applicant sought the termination of the Agreements on the basis that no employees are currently employed by the Applicant under the Agreements. Mr McDonald stated that the termination of the Agreements would not be contrary to the public interest on that basis.

[7] Mr McDonald provided a further affidavit. In the further affidavit, Mr McDonald affirmed that no current employees are engaged or covered by the Agreements. He further affirmed:

“7. I affirm the WFAM Agreement 2015 (AE415929) - AG2020/2622 which relates to the contract with WICET expired on 27^th March 2020. TAMS Group no longer perform works on this site and therefore have no employees engaged under this agreement.

8. I affirm the MIPEC LNG Projects Marine Agreement 2011 (AE886162) - AG2020/2623 was replaced by the MIPEC LNG Projects Marine Agreement 2015 (AE415425) - AG2020/2627.

9. I affirm the MIPEC LNG Projects Construction Enterprise Agreement 2011 (AE886005) - AG2020/2624 was replaced by the MIPEC LNG Projects Construction Enterprise Agreement 2015 (AE414305) - AG2020/2630

10. I affirm the MIPEC Pty Ltd Maintenance Enterprise Agreement 2011 (AE886003) - AG2020/2625 has been replaced by the MIPEC Gladstone Marine Enterprise Agreement 2015 (AE417108) and the MIPEC Gladstone Workshop Enterprise Agreement 2015 (AE417164). These two agreements cover the application and all listed classifications of the previous agreement.

11. I affirm that the MIPEC LNG Projects Marine Agreement 2015 (AE415425) - AG2020/2627 is no longer current. As outlined in clause 4 of the agreement the period of construction activities has ended on the Gladstone Harbour or Curtis Island LNG Projects. This type of work ceased late 2016 when APLNG train 2 came online.

12. I affirm the MEGSA Agreement 2015 (AE416873) - AG2020/2629 agreement has expired. No works have been undertaken on any Cement Australia site including 11 Red Rover Rd as per Clause 1.2 (b) since May 2019.

13. I affirm no employees have performed works under the LNG Projects Construction Enterprise Agreement 2015 (AE414305) - AG2020/2630 since early 2019. There are no current employees covered by the classification groups listed in clause 11 of this agreement.”

[8] As noted above, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers’ Union (AWU), were parties to several of the Agreements. I wrote to each union requesting that they advise whether they supported termination of the Agreement or opposed the termination. The AMWU and AWU confirmed they did not oppose the termination of the Agreement.

[9] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreements is appropriate. The termination of each of the Agreements will take effect from 15 September 2020.

[10] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

< PR722788>