Ventia Services Pty Ltd
[2023] FWCA 978
•3 APRIL 2023
| [2023] FWCA 978 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Ventia Services Pty Ltd
(AG2023/837)
DRILLING ENTERPRISE AGREEMENT 2014-2018
| Mining industry | |
| DEPUTY PRESIDENT DOBSON | BRISBANE, 3 APRIL 2023 |
Application for termination of the Drilling Enterprise Agreement 2014-2018
Ventia Services Pty Ltd (Ventia) made an application for the termination of the Drilling Enterprise Agreement 2014-2018 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is expressed to cover employees engaged by Easternwell Drilling Labour Hire Pty Ltd that would have otherwise been covered by the Hydrocarbons Industry (Upstream) Award 2010, excluding Rig Managers, Safety Personnel, Tradespersons, Clerical and Administration employees.
Sections 225 of the Act, and 226 of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) 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.”
The employer who made the agreement was Easternwell Drilling Labour Hire Pty Ltd. For reasons outlined further in my decision there are no employees covered by the Agreement and the Agreement does not cover any employee organization. I sought submissions from the Applicant as to how they came to be an employer covered by the Agreement with respect to s225 of the Act. I am satisfied that Ventia Services have acquired Easternwell Drilling Labour Hire Pty Ltd and are therefore the employer for the purposes of s225 of the Act, by virtue of Division 2 of Part 2-8 of the Act.
“226 When the FWC must terminate an enterprise agreement
(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 agreement does not, and is not likely to, cover any employees; or
(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).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(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.”
The application was accompanied by a F24C declaration completed by Mr Alishan Megerdichian (Senior Legal Counsel (Employment)). Mr Megerdichian provided the following reasons for the termination of the Agreement:
(a)The Agreement reached its nominal expiry date on 20 August 2018;
(b)The relevant project which applied to employees covered by the Agreement has come to an end;
(c)There are no longer any employees engaged under the agreement;
(d)The Agreement has no present or future operation; and
(e)The termination of the Agreement will have no effect on the Employer or on any employees.
I am satisfied that the employer has applied for the termination of the Agreement.
There is no employee organisation covered by the Agreement whose views or circumstances I can take into account.
I am satisfied that none of the criteria in s.226(4) are applicable in this matter and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s.226(5)).
The termination will operate from the date of this decision.
DEPUTY PRESIDENT
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