Ventia Australia Pty Limited

[2023] FWC 1938

[2023] FWC 1938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Ventia Australia Pty Limited

(AG2023/2522)

TRANSFIELD SERVICES (AUSTRALIA) GW AFTER HOURS HELP DESK COLLECTIVE AGREEMENT 2013-2016

Clerical industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 4 AUGUST 2023

Application for termination of the Transfield Services (Australia) GW After Hours Help Desk Collective Agreement 2013-2016.

1. Ventia Australia Pty Limited (company) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Transfield Services (Australia) GW After Hours Help Desk Collective Agreement 2013-2016 (Agreement). The Agreement is expressed to cover Transfield Services (Australia) Pty Ltd (Transfield Services). The company is the successor to Transfield Services and is covered by the Agreement. The Agreement also covers employees engaged in classifications set out in the schedule to the Agreement, and the Australian Municipal, Administrative, Clerical and Services Union (ASU). The Agreement reached its nominal expiry date on 31 July 2016.

1. Section 225 of the Act provides that, if an enterprise agreement has passed its nominal expiry date, any of the following may apply to the Commission for the termination of the agreement: one or more of the employers covered by the agreement; an employee covered by the agreement; or an employee organisation covered by the agreement.

1. Section 226 of the Act states that, if an application for the termination of an enterprise agreement is made under s 225, the Commission must terminate the agreement if any of the requirements of ss 226(1)(a), (b) or (c) is met. Relevantly in the present case, the requirement of clause 226(1)(b) is made out if the Commission is satisfied that the agreement ‘does not, and is not likely to, cover any employees’.

1. Section 226(1A) provides that the Commission must terminate an agreement under s 226(1) only if it is satisfied that it is ‘appropriate in all the circumstances to do so’.

1. Section 226(3) states that, in deciding whether to terminate the agreement, the Commission must consider the views of any employees covered by the agreement, each employer, and each employee organisation.

1. Section 226(4) requires the Commission to have regard to whether the application was made at or after the notification time for a proposed enterprise that will cover the same or substantially the same group of employees as the existing agreement; whether bargaining for the proposed enterprise agreement is occurring; and whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

1. Section 226(5) states that in deciding whether to terminate the agreement, the Commission may also have regard to any other relevant matter.

1. The company’s F24C declaration, signed by Alishan Megerdichian, states that there are no employees covered by the Agreement, and that the company considers that the Agreement has ‘no present or future operation’. At a telephone hearing on 3 August 2023, Mr Megerdichian confirmed that the last employee whose employment was covered by the Agreement ceased employment on or about 30 June 2023, following the company’s loss of a contract which resulted in employees’ positions becoming redundant. Mr Megerdichian also stated that the company has no intention of employing any employees under the Agreement in the future.

1. The ASU has advised the Commission that it does not oppose the company’s application to terminate the Agreement.

1. Based on the declaration and submissions of Mr Megerdichian, I am satisfied that the Agreement does not, and is not likely to, cover any employees, and that the requirement of s 226(1)(b) is therefore met.

1. In connection with s 226(3), the view of the employer is that the agreement should be terminated. The view of the ASU is that it does not oppose termination. There are no relevant employees.

1. None of the circumstances referred to in s 226(4) are present in this case. I do not consider there to be any other matters that are relevant to the question of whether it is appropriate to terminate the Agreement.

1. I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from 7 August 2023.

DEPUTY PRESIDENT
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