Tyco Projects (Australia) Pty Ltd

[2019] FWC 7851

[2019] FWC 7851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Tyco Projects (Australia) Pty Ltd

(AG2019/3198)

Deputy President Gostencnik MELBOURNE, 4 DECEMBER 2019

Application for termination of the Tyco Fire Protection Products Victoria Enterprise Agreement 2013-2016.

1. Tyco Projects (Australia) Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Tyco Fire Protection Products Victoria Enterprise Agreement 2013-2016[1](Agreement). The Agreement is expressed to cover the Applicant and its employees who are engaged in occupations and industry callings covered by the National Electrical Electronic Communications Contracting Award 2010 (Award) and employed in the state of Victoria.[2] The Agreement has passed its nominal expiry date.

1. Section 225 of the Act provides:

“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.”

1. Section 226 of the Act provides:

“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.”

1. An F24C statutory declaration made by Ms Linda Kelley was lodged in the Commission in support of the application. In that declaration Ms Kelley states that there were two employees, Mr Mark Harrison and Mr Ruban Vadivelu, covered by the Agreement, but due to a change in nature of the business and in the employees’ roles, the two employees were no longer covered by the Agreement. Both employees previously worked as Technicians however are now employed as ‘Product Support Engineers’.

1. On 28 October 2019, the Applicant provided to my Chambers a position description for the role of Product Support Engineer. It appears the duties of a Product Support Engineer do not fall within any of the classifications set out in the Award and it follows that the two employees are employed in occupations that are not covered by the Award. Consequently the employees are also no longer covered by the Agreement. No other employees of the Applicant are covered by the Agreement and so I am satisfied on the material that there are no employees covered by the Agreement.

2. Based on the material contained in the employer’s declaration filed with the application, and the supplementary material it has provided, I am satisfied that termination of the Agreement is not contrary to the public interest. 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. There are no other circumstances apparent to me which would militate against this conclusion. As the matters in s.226(a) and (b) are satisfied, the Agreement must be terminated and I terminate the Agreement. 

1. The termination will operate from 4 December 2019.

1. An order giving effect to this decision is separately issued in PR714381.

DEPUTY PRESIDENT

Determined on the papers

<PR714366>

[1] AE407347

[2] Ibid at clause 2.1

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