Waycon Services Pty Ltd

[2017] FWCA 529

[2017] FWCA 529

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Waycon Services Pty Ltd
(AG2016/8041)

WAYCON SERVICES PTY LTD / CFMEU ENTERPRISE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 25 JANUARY 2017

Application for termination of the Waycon Services Pty Limited / CFMEU Enterprise Agreement 2009 - 2011.

[1] Waycon Services Pty Ltd (the Applicant) has applied to terminate the Waycon Services Pty Limited / CFMEU Enterprise Agreement 2009 - 2011 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 31 December 2011.

[4] The relevant provisions of the Act are 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.

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.


227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] Ms Jenna Cuthbertson the Workplace Relations Manager of the Applicant has advised the Commission that the Agreement does not cover any employee and there are no circumstances where any employee would be covered by the Agreement in the future.

[6] The Construction, Forestry, Mining and Energy Union (CFMEU) was invited to provide its view on the application and has advised it does not oppose the application.

[7] On the basis of the information provided by the Applicant, which has not been challenged by the CFMEU, in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[8] Accordingly, the Waycon Services Pty Limited / CFMEU Enterprise Agreement 2009 - 2011 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

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