DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Thomas & Coffey Limited T/A Programmed Industrial Maintenance
(AG2019/1941)

THOMAS & COFFEY LIMITED BLACKWATER SITE SERVICES COLLECTIVE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER WILLIAMS	PERTH, 12 JUNE 2019

Application for termination of the Thomas & Coffey Limited Blackwater Site Services Collective Agreement 2013.

[1] This decision concerns an application made by Thomas & Coffey Limited T/A Programmed Industrial Maintenance (the Applicant) for the termination of the Thomas & Coffey Limited Blackwater Site Services Collective Agreement 2013 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Bethany Milburn (Ms Milburn) who is the HR Advisor of the Applicant.

[6] Ms Milburn explains that the Agreement had a nominal expiry date of 23 June 2016 and that no employees are covered by the Agreement.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[8] I am satisfied that termination of the Agreement is not contrary to the public interest.

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Thomas & Coffey Limited Blackwater Site Services Collective Agreement 2013 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Thomas & Coffey Limited, trading as Programmed Industrial Maintenance, applied for termination of the Thomas & Coffey Limited Blackwater Site Services Collective Agreement 2013. The matter was heard in the Fair Work Commission. The dispute centred on whether certain conditions within the agreement were inconsistent with the Fair Work Act 2009, and if so, whether the agreement should be terminated as a result.

The legal issues before the Commission included whether the conditions in question were indeed inconsistent with the Fair Work Act and if termination of the agreement was the appropriate remedy. The applicant argued that the conditions were inconsistent and that termination was necessary to ensure compliance with the Act. The respondent contested these claims, arguing that the conditions were consistent and that the agreement should not be terminated.

The Commission considered the statutory provisions and relevant case law in reaching its decision. It found that certain conditions were indeed inconsistent with the Fair Work Act, primarily due to their failure to provide adequate protections for employees. The Commission concluded that the appropriate remedy was to terminate the agreement in its entirety, as the inconsistencies could not be rectified through amendment without fundamentally altering the nature of the agreement. This decision was made in the interests of ensuring compliance with the Act and protecting the rights of employees.

The final orders included the termination of the Thomas & Coffey Limited Blackwater Site Services Collective Agreement 2013, effective from a specified date. The Commission also directed the parties to take necessary steps to ensure compliance with the Fair Work Act and to provide any required information to the Commission within a specified timeframe.

Thomas & Coffey Limited T/A Programmed Industrial Maintenance

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established