Total AMS Pty Ltd

[2017] FWCA 4800

[2017] FWCA 4800

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Total AMS Pty Ltd
(AG2017/3618)

TOTAL AMS PTY LTD CONTRACT PROPELLED DREDGING (MARITIME - AMOU) WORKPLACE AGREEMENT 2009

Mining industry
DEPUTY PRESIDENT BULL	PERTH, 15 SEPTEMBER 2017

Application for termination of the Total AMS Pty Ltd Contract Propelled Dredging (Maritime-AMOU) Workplace Agreement 2009.

[1] An application has been made by Total AMS Pty Ltd (the applicant) pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Total AMS Pty Ltd Contract Propelled Dredging (Maritime-AMOU) Workplace Agreement 2009 (Agreement ID AC322951) (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] Schedule 3, Item 16(1) of the Transitional Act states:

Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[4] Section 225 of the Act, which is contained in Subdivision D of Division 7 of Part 2-4 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 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.

[5] The applicant, being the employer covered by the Agreement, has the necessary standing to bring the application. The Agreement has passed the nominal expiry date of 30 June 2011.

[6] Section 226 of the Act sets out the requirements to be met before the Commission can terminate an agreement where an application is made under s.225.

226 When 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] A statutory declaration signed by Ms Ashleigh Burnett, Senior Payroll Officer of the applicant, accompanied the application, lodged on 17 August 2017.

[8] In Ms Burnett’s statutory declaration, it stated that there are no employees covered by the Agreement.

[9] The Commission sought the views of the Australian Maritime Officers Union (AMOU) in respect of the application. In an email dated 13 September 2017, Ms Jan Thompson, Industrial Officer at AMOU, stated the Agreement has been superseded and the AMOU has no issue with the application to terminate the Agreement.

[10] On the basis of the information provided by the applicant and the AMOU, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[11] I am satisfied that the requirements of s.226 of the Act have been met and accordingly the application to terminate the Agreement is approved.

[12] In accordance with s.227 of the Act, the Agreement is terminated with effect from the date of this decision.

DEPUTY PRESIDENT

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<Price code A, AC322951  PR596103>