DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Total AMS Pty Ltd
(AG2017/814)

TOTAL AMS PTY LTD - AMWU - GORGON PROJECT - BARROW ISLAND GREENFIELDS AGREEMENT 2013

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

Application for termination of the Total AMS Pty Ltd - AMWU - Gorgon Project - Barrow Island Greenfields Agreement 2013.

[1] This decision concerns an application made by Total AMS Pty Ltd (the Applicant) for the termination of the Total AMS Pty Ltd - AMWU - Gorgon Project - Barrow Island Greenfields 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 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 30 June 2015 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 Pty Ltd - AMWU - Gorgon Project - Barrow Island Greenfields 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Total AMS Pty Ltd recently brought an application before the Fair Work Commission to terminate the Total AMS Pty Ltd - Australian Manufacturing Workers' Union - Gorgon Project - Barrow Island Greenfields Agreement 2013. The applicant, a company engaged in providing management services for the Gorgon Project on Barrow Island, sought the termination of the agreement due to the cessation of its operations on the island and the associated workforce. The AMWU opposed the application, arguing that the termination of the agreement was not justified under the Fair Work Act 2009.

The legal issues before the Commission included whether the termination of the agreement was appropriate, given the cessation of operations and workforce, and whether any other factors should be considered in determining the application. The Commission needed to weigh the company's operational changes against the rights and protections afforded to employees under the Fair Work Act. The applicant argued that the termination was necessary due to the complete cessation of its activities on Barrow Island, while the union contended that the agreement should remain in place to protect the employees' rights.

The Fair Work Commission found that the applicant's operations on Barrow Island had ceased, and as a result, the workforce associated with those operations had also been reduced to nil. The Commission concluded that the agreement was no longer applicable due to the cessation of the applicant's activities and the associated workforce. The Commission determined that the termination of the agreement was appropriate under the Fair Work Act, and the application was accordingly granted. The Total AMS Pty Ltd - AMWU - Gorgon Project - Barrow Island Greenfields Agreement 2013 was terminated, effective from the date of the decision.

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