Whelans Australia Pty Ltd

[2015] FWCA 4927

[2015] FWCA 4927

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Whelans Australia Pty Ltd
(AG2015/3810)

WHELANS EMPLOYEE COLLECTIVE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 20 JULY 2015

Application for termination of the Whelans Employee Collective Agreement.

[1] This decision concerns an application by Whelans Australia Pty Ltd (the applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act) to terminate the Whelans Employee Collective Agreement (the Agreement). The Agreement had a nominal expiry date of 30 April 2014.

[2] 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.”

[3] The applicant’s HR Manager Mr Emanuele Dolfi has provided a statutory declaration that 76% of the employees covered by the Agreement support its termination. The majority of the employees have entered into employment contracts that specifically reference the relevant Award and for the few employees who have not entered into employment contacts the applicant has undertaken that upon the termination of the Agreement these employees will maintain their remuneration level and be engaged pursuant to the relevant Award. All employees are paid more than the relevant Award.

[4] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[5] Accordingly, the Whelans Employee Collective Agreement 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

Printed by authority of the Commonwealth Government Printer

<Price code A, AC317589  PR569601>