Total AMS Pty Ltd

[2017] FWCA 1875

[2017] FWCA 1875

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
(AG2017/833)

TOTAL AMS PTY LTD MUA CONTRACT PROPELLED DREDGING ENTERPRISE AGREEMENT 2012

Dredging industry
DEPUTY PRESIDENT BULL	PERTH, 10 APRIL 2017

Application for termination of the Total AMS Pty Ltd MUA Contract Propelled Dredging Enterprise Agreement 2012.

[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 MUA Contract Propelled Dredging Enterprise Agreement 2012 (the Agreement).

[2] The Agreement was approved by the Fair Work Commission on 22 January 2013 to operate from 29 January 2013 with a nominal expiry date of 8 February 2016.

[3] The Agreement applies to the Employer, the Maritime Union of Australia (MUA), and to employees of the employer who are members or who are eligible to be members of the MUA in relation to work on vessels owned or operated by the employer.

[4] 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;

(c) an employee organisation 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

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

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

[7] 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.

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

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

[10] The MUA was invited to provide its view on the application but did not seek to make a submission.

[11] 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.

[12] 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.

[13] Accordingly, an Order [PR591543] to this effect will be issued ordering the
Agreement be terminated with effect from the date of this decision.

DEPUTY PRESIDENT

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<Price code A, PR591542>