Ventia (Australia) Pty Limited

[2024] FWCA 3305

[2024] FWCA 3305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Ventia (Australia) Pty Limited

(AG2024/3267)

DEPUTY PRESIDENT O’KEEFFE PERTH, 18 SEPTEMBER 2024

Application for termination of the Ventia Western Australia Aircraft Refuelling Services Enterprise Agreement 2021

An application pursuant to s225 of the Fair Work Act (Cth) (the FW Act) has been made by Ventia (Australia) Pty Ltd (the Applicant) to terminate the Ventia Western Australia Aircraft Refuelling Services Enterprise Agreement 2021 (the Agreement) (AE517059).

1. 225 of the FW Act provides 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.”

1. The Agreement has passed its nominal expiry date of 30 June 2024. The Applicant is an employer covered by the Agreement and has standing to make the application as per s225(a).

1. The Applicant has provided a statutory declaration stating that the Agreement does not cover any employees.

1. The criteria for termination of an agreement are set out in s226 of the FW Act, the relevant parts of which is as follows:

“226 Terminating an enterprise agreement after its nominal expiry date

(1)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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)all of the following apply:

(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)     However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)       This subsection covers a termination of the employment of an employee:

(a)       at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)       because of the insolvency or bankruptcy of the employer.

(3)       In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)the employees (unless there are no employees covered by the agreement);

(b)       each employer;
          (c)       each employee organisation (if any).

(4)In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)         whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b)         whether bargaining for the proposed enterprise agreement is occurring; and
(c)         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.

(5)       In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. The Applicant has provided a declaration that the Agreement does not cover any employees, and I am satisfied that this is the case. The Transport Workers’ Union of Australia (TWU) is an employee organisation covered by the Agreement. I sought the views of the TWU and the TWU confirmed that no employees are covered by the Agreement and indicated that it did not oppose termination of the Agreement.

2. I am satisfied that it is appropriate in all of the circumstances to terminate the Agreement, and I order that the Agreement be terminated. Such termination shall take effect from 18 September 2024.

DEPUTY PRESIDENT

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<AE517059  PR779407>