Total Employment Services Australia Pty Ltd

[2017] FWCA 5110

[2017] FWCA 5110

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 Employment Services Australia Pty Ltd
(AG2017/4464)

HAY POINT EXPANSION PROJECT AGREEMENT 2005 (NO 2) - TESA

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 1 NOVEMBER 2017

Termination of the Hay Point Expansion Project Agreement 2005 (No 2) - TESA.

[1] On 25 September 2017 Total Employment Services Australia Pty Ltd (the Company) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Hay Point Expansion Project Agreement 2005 (No 2) - TESA (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration of Carina Winstanley, Human Resources Advisor.

[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and Construction, Forestry, Mining and Energy Union (CFMEU) are the employee organisations (the Unions) covered by the Agreement.

[4] On 3 October 2017 my Associate wrote to each of the Unions to seek their views in relation to the application and sought their response by close of business on 6 October 2017.

[5] In correspondence to my Chambers on 9 October 2017, the AMWU advised that they do not object to the termination of the Agreement on the basis that no employees are covered by it.

[6] In correspondence to my Chambers on 13 October 2017, the CFMEU advised that they do not object to the termination of the Agreement.

Legislative provisions

[7] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) 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.

[8] Chapter 2, Part 2-4, Division 7, Subdivision D is as follows:

“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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[9] Based on the material contained in the statutory declaration filed with the application, and in consideration of s.226(a), 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 militate against the termination of the Agreement.

[10] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[11] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[12] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[13] The termination will take effect from today, 1 November 2017.

COMMISSIONER

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