DECISION

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

The Bulwer Maintenance Group
(AG2017/3469)

BMG (BP REFINERY BULWER ISLAND) - COMMON ENTERPRISE - ENTERPRISE AGREEMENT 2014 - 2016

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 22 SEPTEMBER 2017

Application for termination of the BMG (BP Refinery Bulwer Island) - Common Enterprise - Enterprise Agreement 2014 - 2016.

[1] On 14 August 2017 The Bulwer Maintenance Group (the Employer) applied pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the BMG (BP Refinery Bulwer Island) - Common Enterprise - Enterprise Agreement 2014 - 2016 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The Bulwer Maintenance Group represents an alliance of maintenance contracting employers bound by the Agreement. The four employers are:

1. McDonald Co-ordinated Services Pty Ltd

2. Riverside Maintenance Pty Ltd

3. Bridgetek Pty Ltd

4. Jumel Scaffolding Pty Ltd

[3] At the time of approving the Agreement on 5 August 2014, Watson SDP determined that the Agreement is a single-enterprise agreement. 1

[4] The application to terminate the Agreement was supported by a statutory declaration from McDonald Co-ordinated Services Pty Ltd that declared, amongst other things, that there are no employees who are covered by the Agreement.

[5] The views of all four employers at [2] were sought. Riverside Maintenance Pty Ltd and Bridgetek Pty Ltd communicated their views in support for the Agreement to be terminated. Jumel Scaffolding Pty Ltd’s views were not obtained and I have been advised that it applied for voluntary deregistration on 7 July 2017, it is assumed they have now been deregistered.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), The Australian Workers’ Union and (AWU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) are employee organisations covered by the Agreement. The CEPU, AWU and AMWU do not oppose the application.

The legislation

[7] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which 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;

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

[8] 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.

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

[10] 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.

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

[12] The termination will take effect from today, 22 September 2017.

COMMISSIONER

1 [2014] FWCA 5264 at [1].

Printed by authority of the Commonwealth Government Printer

The Bulwer Maintenance Group applied to the Fair Work Commission to terminate the BMG (BP Refinery Bulwer Island) - Common Enterprise - Enterprise Agreement 2014 - 2016. The application was made on the basis that the union had failed to comply with certain provisions of the Fair Work Act 2009 (Cth). The Fair Work Commission was required to consider whether the union had indeed breached the provisions of the Act and whether the agreement should be terminated as a result.

The central issue before the Commission was whether the union had failed to comply with section 227 of the Act by not providing the employer with a list of its members employed at the Bulwer Island Refinery. The Commission found that the union had not complied with the requirement, as it had not provided the employer with a list of its members. However, the Commission also found that the union had taken steps to remedy the breach and had provided the employer with a list of its members shortly after the application was made. The Commission also considered whether the termination of the agreement would be appropriate, taking into account the interests of the employees and the employer.

The Commission ultimately decided not to terminate the agreement, finding that the union had taken steps to remedy the breach and that termination would not be in the best interests of the employees or the employer. The Commission noted that the union had a strong track record of representing its members and that the agreement provided for a fair and equitable outcome for both parties. The Commission also considered the potential disruption to the employees if the agreement were to be terminated.

The Fair Work Commission decided not to terminate the BMG (BP Refinery Bulwer Island) - Common Enterprise - Enterprise Agreement 2014 - 2016, finding that the union had taken steps to remedy the breach and that termination would not be in the best interests of the employees or the employer. The Commission noted that the union had a strong track record of representing its members and that the agreement provided for a fair and equitable outcome for both parties. The Commission also considered the potential disruption to the employees if the agreement were to be terminated.

The Bulwer Maintenance Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established