Ventia Australia Pty Ltd T/A Ventia

[2021] FWCA 4605

[2021] FWCA 4605

FAIR WORK COMMISSION

DECISION

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

Ventia Australia Pty Ltd T/A Ventia
(AG2021/5784)

BROADSPECTRUM AWD (ASC SOUTH) ENTERPRISE AGREEMENT 2015-2018

Manufacturing and associated industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 30 JULY 2021

Application for termination of the Broadspectrum AWD (ASC South) Enterprise Agreement 2015-2018

[1] On 24 June 2021 Ventia Australia Pty Ltd T/A Ventia (Ventia) 1 applied to the Commission to terminate the Broadspectrum AWD (ASC South) Enterprise Agreement 2015-2018 (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] The Agreement names the Construction, Forestry, Mining and Energy Union (General and Construction Division, Victorian and Tasmanian branch) (CFMMEU) as a union covered.

[3] I issued Directions on 29 June 2021. These Directions required Ventia to make the documents lodged as part of this application available to employees with an interest in the application for inspection, such as by electronic means or on a relevant noticeboard accessible to all employees. Ventia was instructed to provide confirmation that this has occurred, or that there are no employees with an interest in the Directions.

[4] Ventia was also directed to provide proof of service on the CFMMEU in accordance with Rule 41 of the Fair Work Commission Rules 2013. The email lodging this application in the Commission was copied to the CFMMEU.

[5] On 30 June 2021 Ventia confirmed that there are no employees with an interest in the directions.

[6] My Directions directed the CFMMEU to advise its position, if any, on the application to the Commission and to Ventia by close of business on Thursday 8 July 2021.

[7] My Directions required in the event that an affected employee or the CFMMEU sought to oppose the application, or otherwise be heard on it, that advice must have been provided to the Commission and APC by close of business on Thursday 8 July 2021.

[8] No correspondence was received from anyone purporting to be an affected employee.

[9] On 29 July 2021 the CFMMEU advised that it did not oppose the application. 2

[10] I will briefly comment on two matters that arose in this file before I turn to my consideration.

[11] Upon review of the application it became apparent that it had been lodged by Ventia Pty Ltd trading as Ventia while the Agreement names ‘Broadspectrum (Australia) Pty Ltd’ as a party bound. 3 On 1 July 2021 my Chambers emailed parties and Ventia was asked to file materials concerning its standing to make this application.

[12] Ventia responded on 1 July 2021 by providing an ASIC extract indicating that Broadspectrum (Australia) Pty Ltd changed its name to ‘Ventia Australia Pty Ltd’. 4 Ventia also noted that it had lodged its application in the name of ‘Ventia Pty Ltd’ rather than ‘Ventia Australia Pty Ltd’ and offered to revise its application.

[13] After confirming that ‘Ventia Australia Pty Ltd’ was the corporate entity making this application and providing a period for the CFMMEU to advise any objection (no objection was raised) I granted leave to amend the application such that it was lodged by ‘Ventia Australia Pty Ltd t/a Ventia’. 5

[14] The second observation is that determination of this matter has been delayed somewhat by the late confirmation of position by the CFMMEU. My Directions required the CFMMEU to advise its position, if any, on the application by close of business on 8 July 2021. Despite being prompted by subsequent email and phone communication from my Chambers on more than one occasion, it was not until Thursday 29 July 2021 (some 21 days later) that the CFMMEU communicated a position. Whilst no apparent prejudice has arisen to the Applicant from this delay, and whilst the CFMMEU has appropriately apologised for its tardiness, it is the Commission’s expectation that Directions be complied with in a timely manner, particularly by established industrial associations where that association has sought and been granted institutional recognition by the Commission as being covered by the enterprise agreement the subject of the Directions.

Consideration

[15] Ventia, formerly known as Broadspectrum (Australia) Pty Ltd, is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[16] Section 226 of the FW Act provides as follows:

“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.”

[17] The Agreement is a single enterprise agreement. It was approved on 6 September 2016, its original nominal expiry date was 31 October 2018. 6 It was varied on 3 June 2019 to amend, amongst other clauses, its nominal expiry date to 31 October 2019.7 It has now passed its varied nominal expiry date.

[18] The Applicant’s evidence is that the project which applied to employees covered by the Agreement has been terminated, that there are no employees currently covered by the Agreement and that the Agreement has no present or future operation.

[19] I have considered the information provided in the application pursuant to section 225 of the FW Act. This includes the Form 24C Declaration of Alishan Megerdichian dated 24 June 2021. I also take into account that the CFMMEU does not oppose the application.

[20] I am satisfied as to each of the matters contained in section 226 of the FW Act. It is appropriate to terminate the Agreement given the circumstances. Accordingly, the Agreement is terminated.

[21] The termination will come into effect from 11.59pm 30 July 2021. An Order to this effect will be issued in conjunction with this Decision. 8

DEPUTY PRESIDENT

 1   The original application was lodged by ‘Ventia Pty Ltd t/a Ventia’, this was later amended to ‘Ventia Australia Pty Ltd t/a Ventia’

 2   Email to Chambers – Anderson DP on 29 July 2021 at 1:42pm

 3   Agreement clause 3

 4   Email to Chambers – Anderson DP on 1 July 2021 at 5:46pm

 5   Email to parties from Chambers – Anderson DP on 7 July 2021 at 2:08pm

 6   [2016] FWCA 6282

 7   [2019] FWCA 3823

 8   PR732282

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