Waycon Services Pty Ltd

[2018] FWCA 1344

[2018] FWCA 1344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Waycon Services Pty Ltd
(AG2018/562)

WAYCON SERVICES PTY LTD AND THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION GREENFIELDS AGREEMENT (ACT) 2014-2016

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	CANBERRA, 6 MARCH 2018

Application for termination of the Waycon Services Pty Ltd and the Construction, Forestry, Mining & Energy Union Greenfields Agreement (ACT) 2014-2016 – Agreement terminated.

[1] Waycon Services Pty Ltd (the Applicant) made an application under s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Waycon Services Pty Ltd and the Construction, Forestry, Mining & Energy Union Greenfields Agreement (ACT) 2014-2016  1(the Agreement). The application was received by the Fair Work Commission (the Commission) on 20 February 2018.

[2] The Agreement has a nominal expiry date of 1 March 2016.

[3] 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.”

Consideration of the issues

[4] With regard to the requirements of s.225, as mentioned above the Agreement has passed its nominal expiry date. As the Applicant is covered by the Agreement, I am therefore satisfied that it is entitled to make an application for termination of the Agreement.

[5] I turn now to deal with the considerations set out in s.226 of the Act.

s.226(a) – Public Interest

[6] The Applicant submits that it is not contrary to the public interest to terminate the Agreement.

[7] A Statutory Declaration was filed by Ms Kate Greig, Workplace Relations Manager of the Applicant, in support of the application. Ms Grieg declared that no employees were covered by the Agreement. Ms Greig further contended that the Agreement is not compliant with the Code for Tendering and Performance of Building Work 2016 (the Code) and its existence prevents the company from tendering for Commonwealth funded building work.

[8] No material was put to the Commission suggesting that it would be contrary to the public interest to terminate the Agreement.

s.226(b)(i) – the views of the employees, each employer, and each employee organisation (if any), covered by the agreement

[9] The Applicant supports termination of the Agreement and submitted that no employees are covered by the Agreement.

[10] On 21 February 2018, the Commission contacted the Construction, Forestry, Mining and Energy Union (CFMEU), which is covered by the Agreement and requested its views on terminating the Agreement. The CFMEU on 28 February 2018 advised that it did not oppose termination of the Agreement.

[11] In short, the views received by the Commission either support or do not oppose termination of the Agreement.

s.226(b)(ii) – the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them

[12] In her Statutory Declaration Ms Greig declared that termination of the Agreement would have a beneficial impact on the Applicant as it would be able to tender for Commonwealth funded building work.

Summary

[13] Having regard to the requirements of s.226 of the Act and based on the material that is before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances. As such, consistent with s.226 of the Act the Commission must terminate the Agreement.

Conclusion

[14] Pursuant to s.226 of the Act, the Agreement is terminated. The termination of the Agreement shall operate from 6 March 2018. An Order to that effect will be issued in conjunction with this Decision.

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