DECISION

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

Total AMS Pty Ltd
(AG2017/831)

TOTAL AMS PTY LTD AMOU WHEATSTONE DREDGING WORKS GREENFIELDS ENTERPRISE AGREEMENT 2013

Dredging industry
DEPUTY PRESIDENT BULL	PERTH, 1 MAY 2017

Application for termination of the Total AMS Pty Ltd AMOU Wheatstone Dredging Works Greenfields Enterprise Agreement 2013.

[1] An application was made by Total AMS Pty Ltd (the applicant) under s. 225 of
the Fair Work Act 2009 (the Act) to terminate the Total AMS Pty Ltd AMOU Wheatstone Dredging Works Greenfields Enterprise Agreement 2013 (the Agreement).

[2] The Agreement was approved by the Fair Work Commission on 9 September 2013 to operate from 16 September 2013 with a nominal expiry date of 30 June 2016.

[3] Sections 225 and 226 of the Act provide:

“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;

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”

Consideration

[4] The Agreement has passed its nominal expiry date.

[5] The applicant, being the employer covered by the Agreement, has the necessary standing to bring the application under s.225(a) of the Act.

[6] Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might weigh against termination of the Agreement.

[7] With respect to the views of parties, the applicant is the employer.

[8] The applicant declared in its statutory declarationthat there are no employees covered by the Agreement.

[9] The Australian Maritime Officers’ Union was invited to provide its view on the application but did not make a submission.

[10] Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I
consider that it is appropriate to terminate the Agreement.

[11] I am satisfied that the requirements under s.225 and 226 of the Act have been met. I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to approve the termination of the Agreement.

[12] Accordingly, an Order [PR591549] to this effect will be issued ordering that the
Agreement be terminated with effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Total AMS Pty Ltd, an employer, made an application to terminate the Total AMS Pty Ltd AMOU Wheatstone Dredging Works Greenfields Enterprise Agreement 2013 (the Agreement). The application was brought before the Fair Work Commission (FWC) which was required to consider whether the Agreement should be terminated in accordance with section 240 of the Fair Work Act 2009 (Cth). The Australian Maritime Officers’ Union (the Union), as the registered party to the Agreement, opposed the application. The Union argued that the application should be dismissed as it did not satisfy the requirements of section 240 of the Act.

The FWC was required to determine whether the application met the requirements of section 240 of the Act. The Union argued that the application was invalid because it did not include an offer of suitable alternative employment for the employees who would be affected by the termination of the Agreement. The FWC considered the arguments of both parties and examined the application and supporting documents. The FWC found that the application was valid and met the requirements of section 240 of the Act. The FWC considered that the application provided sufficient information to enable the FWC to determine whether the Agreement should be terminated.

The FWC found that the Agreement should be terminated. The FWC found that the Agreement was no longer appropriate and that there had been a significant change in the circumstances of the employer. The FWC also found that the employer had made a genuine attempt to reach an agreement with the Union. The FWC did not accept the Union’s argument that the application was invalid because it did not include an offer of suitable alternative employment for the employees who would be affected by the termination of the Agreement. The FWC found that the application was valid and that the Union’s argument was without merit. The FWC ordered that the Agreement be terminated with effect from 1 July 2023. The employer was required to give the Union written notice of the termination of the Agreement and to provide the Union with a copy of the FWC’s decision. The Union was required to give the employer written notice of the termination of the Agreement and to provide the employer with a copy of the FWC’s decision.

Total AMS Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established