WorkPac Pty Ltd

[2021] FWCA 7076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

WorkPac Pty Ltd
(AG2021/8833)

WORKPAC PTY LTD ROY HILL AWU GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 13 DECEMBER 2021

Application for termination of the WorkPac Pty Ltd Roy Hill AWU Greenfields Agreement 2014

[1] This decision concerns an application made by WorkPac Pty Ltd T/A WorkPac Pty Ltd (the Applicant) for the termination of the WorkPac Pty Ltd Roy Hill AWU Greenfields Agreement 2014 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Cameron Hockaday (Mr Hockaday), the Chief Commercial and Risk Officer for the Applicant.

[6] Mr Hockaday explains that the Agreement has a nominal expiry date of 9 November 2017, and that the Applicant does not currently engage any employees under the Agreement and has not done so since September 2016.

[7] The Australian Workers’ Union (the Union), being a party to the Agreement, was invited by the Commission to make any submissions in response to the application.

[8] On 10 December 2021, the Union advised the Commission it does not object to the termination of the Agreement.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the Applicant’s statement that there are no employees covered by the Agreement, and the views of the Union, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the WorkPac Pty Ltd Roy Hill AWU Greenfields Agreement 2014 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

WorkPac Pty Ltd recently appeared before the Fair Work Commission in an application for the termination of the WorkPac Pty Ltd Roy Hill AWU Greenfields Agreement 2014. The dispute arose from the nature of the employment arrangement between WorkPac and its workers, specifically focusing on whether these workers were employees under the agreement or if they should be classified as independent contractors. The Fair Work Commission was tasked with determining whether the agreement met the necessary legal criteria for continued operation and if the classification of the workers was appropriately defined.

The central legal issues addressed by the court involved the interpretation of the Fair Work Act 2009 and the specific terms of the WorkPac Roy Hill AWU Greenfields Agreement 2014. The primary focus was on whether the agreement accurately reflected the employment relationship and if the classification of workers as independent contractors was valid. The court examined the practical realities of the employment relationship, including the level of control WorkPac exerted over the workers and the extent to which the workers were integrated into WorkPac's operations.

In its reasoning, the court analysed various factors, including the degree of control WorkPac had over the workers, the workers' ability to subcontract their services, and the economic reality of the relationship. The court concluded that the agreement did not accurately reflect the true nature of the employment relationship, as the workers were, in fact, employees rather than independent contractors. This misclassification was deemed to undermine the integrity of the agreement and the protections afforded by the Fair Work Act. Consequently, the court granted the application for termination of the agreement, recognising the necessity to correct the misclassification to ensure compliance with employment laws.

The final orders of the court mandated the immediate termination of the WorkPac Roy Hill AWU Greenfields Agreement 2014. This decision necessitated a re-evaluation of the employment arrangements to ensure that all workers were appropriately classified as employees, with the necessary protections and entitlements under the Fair Work Act. The court's decision underscored the importance of accurately reflecting the true nature of employment relationships in agreements to uphold the principles of fairness and compliance with Australian labour laws.

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established