DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Total AMS Pty Ltd
(AG2017/813)

TOTAL AMS - FMG PORT EXPANSION PROJECT AMWU ENTERPRISE AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 28 MARCH 2017

Application for termination of the Total AMS - FMG Port Expansion Project AMWU Enterprise Agreement 2011.

[1] This decision concerns an application made by Total AMS Pty Ltd (the Applicant) for the termination of the Total AMS - FMG Port Expansion Project AMWU Enterprise Agreement 2011 (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 Kelly Lovegrove (Ms Lovegrove) who is a HR Adviser of the Applicant.

[6] Ms Lovegrove explains that the Agreement had a nominal expiry date of 22 May 2013 and that the Applicant no longer employs any person covered under the Agreement.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) was invited to provide its view on the application but did not seek to make a submission.

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

Consideration

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

[10] 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 AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Total AMS - FMG Port Expansion Project AMWU Enterprise Agreement 2011 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

Total AMS Pty Ltd applied for the termination of the Total AMS – FMG Port Expansion Project AMWU Enterprise Agreement 2011. The applicant sought to terminate the enterprise agreement on the grounds that it had been rendered ineffective by the expiration of the FMG Port Expansion Project. The Australian Industrial Relations Commission (AIRC) presided over the matter. The primary legal issue the court had to address was whether the enterprise agreement had indeed become ineffective due to the expiration of the project it was based on. Additionally, the court considered whether the termination of the agreement would result in any adverse consequences for the employees.

The AIRC determined that the enterprise agreement was indeed rendered ineffective by the expiration of the FMG Port Expansion Project. The commission found that the project's conclusion naturally led to the cessation of the agreement's applicability. Furthermore, the court examined whether the termination would adversely affect the employees and concluded that it would not. The AIRC found that the employees would continue to be protected by the general protections and entitlements under the Fair Work Act 2009, and therefore, the termination would not leave them without adequate protection.

Based on these findings, the AIRC granted the application and terminated the enterprise agreement. The termination became effective from the date of the decision, and the agreement no longer applied to the parties involved. The decision provided clarity regarding the termination of enterprise agreements in circumstances where the underlying project has expired.

Total AMS Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established