Tutt Bryant Group Limited (formerly Kingston Industries (WA) Pty Ltd)

[2017] FWCA 2378

[2017] FWCA 2378

FAIR WORK COMMISSION

DECISION

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

Tutt Bryant Group Limited

(formerly Kingston Industries (WA) Pty Ltd)

(AG2017/1101)

KINGSTON INDUSTRIES (WA) PTY LTD ENTERPRISE AGREEMENT 2010

Road transport industry
DEPUTY PRESIDENT BULL	PERTH, 22 MAY 2017

Application for termination of the Kingston Industries (WA) Pty Ltd Enterprise Agreement 2010.

[1] An application was made by Tutt Bryant Group Limited (formerly Kingston Industries (WA) Pty Ltd, a 100% owned entity of Tutt Bryant Group Limited) (the applicant) under s. 225 of the Fair Work Act 2009 (the Act) to terminate the Kingston Industries (WA) Pty Ltd Enterprise Agreement 2010 (the Agreement).

[2] The Agreement was approved by the Fair Work Commission on 31 January 2011 to operate from 7 February 2011 with a nominal expiry date of 31 July 2013.

[3] The Agreement applies to employees of the operations of the applicant, formerly Kingston Industries (WA) Pty Ltd, performing work described by the Road Transport (Long Distance Operations) Award 2010 (the Award) within the scope of the Agreement, at the applicant’s Heavy Haulage Contracting Business.

[4] In the Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date (F24C) dated 3 April 2017 and amended 11 May 2017, Mr Paul Roberts, Corporate Services Manager, declared on behalf of the applicant that it ceased operating this business unit in April 2016 due to continual financial losses and all employees were made redundant.

[5] 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

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

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

[8] Based on the material contained in the applicant’s amended 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.

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

[10] Mr Roberts, on behalf of the applicant, stated in his statutory declarationthat there are no employees covered by the Agreement.

[11] The TWU was invited to provide its view on the application and indicated in emails dated 13 April 2017 and 22 May 2017 that it does not oppose the application.

[12] 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.

[13] 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.

[14] Accordingly, an Order [PR592539] 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, AE883877,  PR592538>