WorkPac Pty Ltd T/A WorkPac Group

[2022] FWCA 1192

[2022] FWCA 1192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

WorkPac Pty Ltd T/A WorkPac Group

(AG2022/977)

WorkPac Pty Ltd East Coast Rail Greenfield Agreement 2014

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 5 APRIL 2022

Application for termination of the WorkPac Pty Ltd East Coast Rail Greenfield Agreement 2014.

1. An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by WorkPac Pty Ltd T/A WorkPac Group (the Applicant) to terminate the WorkPac Pty Ltd East Coast Rail Greenfield Agreement 2014 (the Agreement).

1. The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 1 July 2017.

1. Sections 225 and 226 of the Act 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.

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.”

1. Mr Patrick Hill, Senior Employment Relations Advisor for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement.

1. In his statutory declaration, Mr Hill stated that the employer has no employees engaged under the Agreement and there has been no bargaining for the renegotiation of the Agreement.

1. Mr Hill submitted that in those circumstances and for the rationale outlined in Re Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd[1] the termination of the Agreement is not contrary to public interest because there is nothing ‘distinct from the interests of the persons and bodies covered by the agreements’ that has arisen in the application.

1. The Full Bench in Re Aurizon[2] observed that, termination of an Agreement doesn’t preclude the potential creation of a future Agreement and is not counter to the Objects of the Act directed at providing a fair framework for bargaining.

1. In respect of any future employees, Mr Hill submitted that the termination of the Agreement doesn’t preclude the creation of a future Agreement and proper industrial standards and a safety net are provided for in the form of the Building and Construction General On-site Award 2020 or the Rail Industry Award 2020 and the operation of the National Employment Standards as prescribed by the Fair Work Act.

1. It was submitted on behalf of the Applicant, that the termination of the Agreement would not have any effect on any employees, as there are no employees covered by the Agreement and there has been no bargaining for a replacement Agreement.

1. Mr Hill stated that the effect of the termination would be to also simplify the employer’s framework of enterprise agreements. Mr Hill also stated that there is no effect upon any employee(s) because there are no current employees covered by the Agreement and there has been no bargaining for a replacement Agreement.

1. The Australian Rail, Tram and Bus Industry Union (RTBU), being a party to the Agreement were contacted and their views were sought in relation to the termination. The RTBU confirmed through correspondence that they did not object to the termination of the Agreement.

1. Taking into account the information provided in response to the matters in s.226 of the Act, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 5 April 2022.

1. I Order accordingly.

COMMISSIONER

[1] [2015] FWCFB 540 [at 129].

[2] Ibid at [159].

Printed by authority of the Commonwealth Government Printer

<AE411516  PR740004>