Total AMS Pty Ltd

[2017] FWCA 467

[2017] FWCA 467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Total AMS Pty Ltd
(AG2016/8050)

TOTAL AMS - MUA WHEATSTONE DREDGING WORKS ENTERPRISE AGREEMENT 2013

Dredging industry
DEPUTY PRESIDENT BINET	PERTH, 10 FEBRUARY 2017

Application for termination of the Total AMS - MUA Wheatstone Dredging Works Enterprise Agreement 2013.

[1] Total AMS Pty Ltd (Total AMS)has applied (Application) for the Total AMS - MUA Wheatstone Dredging Works Enterprise Agreement 2013 (Agreement) to be terminated pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 9 September 2016.

[3] Total AMS is the employer covered by the Agreement.

[4] The Maritime Union of Australia (MUA) is an employee organisation covered by the Agreement.

[5] Section 225 of the FW Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.”

[6] Section 226 of the FW Act states:

“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.”

[7] Total AMS has filed a Statutory Declaration by Ms Kelly Lovegrove, HR Advisor (Lovegrove Statutory Declaration) which submits that there are no employees covered by the Agreement and there are no circumstances where any employees would be covered by the Agreement in the future.

[8] On 10 January 2017, directions were issued to Total AMS and the MUA which directed the MUA to file a response to the Application and any evidence on which it sought to rely.

[9] By email to the FWC on 18 January 2017, the MUA advised that it did not wish to object to the Application nor seek to be heard in respect of the Application.

Consideration

[10] Based on the material that is before me (including the Application, the Lovegrove Statutory Declaration and the email from the MUA) and in the absence of any evidence to the contrary, I am satisfied that the termination of the Agreement is not contrary to the public interest and that it is appropriate to terminate the Agreement.

[11] Accordingly, the Agreementis terminated. The termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

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