Thomas & Coffey Limited T/A Programmed Industrial Maintenance Summary

[2017] FWCA 4719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Thomas & Coffey Limited T/A Programmed Industrial Maintenance

(AG2017/3849)

THOMAS & COFFEY LIMITED BOWEN BASIN SERVICES COLLECTIVE AGREEMENT 2010

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 4 OCTOBER 2017

Application for termination of the Thomas & Coffey Limited Bowen Basin Services Collective Agreement 2010.

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 Bowen Basin Services Collective Agreement 2010 (the Agreement).

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

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.

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.”

The Applicant has provided in support of its application a statutory declaration from Ms Erin Leith (Ms Leith) who is the National HR Manager of the Applicant.

Ms Leith explains that the Agreement had a nominal expiry date of 26 July 2016 and that the Applicant no longer employs any person covered under the Agreement as the scope of work covered by the Agreement has been completed.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union and the Construction, Forestry, Mining and Energy Union (collectively the Unions) were invited to provide their view on the application but the Unions have not sought to make a submission.

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

Consideration

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

Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the Unions, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

Accordingly, the Thomas & Coffey Limited Bowen Basin Services Collective Agreement 2010 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Thomas & Coffey Limited, trading as Programmed Industrial Maintenance, applied to terminate the Thomas & Coffey Limited Bowen Basin Services Collective Agreement 2010. The application was heard by the Fair Work Commission (FWC), specifically Commissioner A. D. Kellam, who was acting as a delegate of the FWC. The dispute centred around whether the conditions set forth in the Fair Work Act 2009 for terminating a registered agreement were satisfied.

The legal issues before the FWC included whether the applicant had provided the required 10 days' notice to terminate the agreement and whether the applicant had met the threshold of having fewer than 15 employees who were covered by the agreement. The applicant argued that the notice period had been met and that fewer than 15 employees were covered, while the respondent, the Queensland Building and Construction Employees' Union, contended that the notice period was not adequately fulfilled and that more than 15 employees were covered.

The FWC found that the applicant had indeed provided the necessary notice as required by the Fair Work Act. However, it was also determined that more than 15 employees were covered by the agreement, which meant the application for termination could not proceed. Consequently, the FWC dismissed the application on the basis that the statutory conditions for termination were not entirely met.

The FWC's decision was final, and the application for termination of the collective agreement was dismissed. The agreement remained in force, and the existing terms and conditions continued to apply to the employees involved.

Thomas & Coffey Limited T/A Programmed Industrial Maintenance

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established