TMSW Pty Ltd Atft TMSW Unit Trust T/A Traffic Force

[2022] FWCA 1568

[2022] FWCA 1568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

TMSW Pty Ltd Atft TMSW Unit Trust T/A Traffic Force

(AG2022/1286)

Traffic Management South Pty Ltd Collective Agreement

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 11 MAY 2022

Application for termination of the Traffic Management South Pty Ltd Collective Agreement

1. This decision concerns an application made by TMSW Pty Ltd Atft TMSW Unit Trust T/A Traffic Force (“Traffic Force”) for the termination of the Traffic Management South Pty Ltd Collective Agreement (the Agreement).

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

1. 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.

1. 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.”

1. The Applicant has provided in support of its application a statutory declaration from Ms Amy Vincent (Ms Vincent), HR and HSQE Manager for the Applicant.

1. Ms Vincent explains that the Agreement has a nominal expiry date of September 2015, and that the Agreement is underpinned by an expired award. She also explains that the current employees would be better of overall if they were employed under a current agreement or award.

1. The Applicant submits that in the circumstances terminating the Agreement would not be against public interest.

Consideration

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

1. Taking into account that current employees will be better of overall if they are employed under the Applicable Modern Award, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

1. Accordingly, the Traffic Management South Pty Ltd Collective Agreement 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

<AC326041  PR741478>