[1] Protech Group (Aust) Pty Ltd (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Protech On-Hire Agreement 2016 (the Agreement) after its nominal expiry date.

[2] The Agreement is a single enterprise agreement and its nominal expiry date was 29 February 2020.

[3] Section 225 and 226 of the Act relevantly provides:

"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;

(c) an employee organisation covered by the agreement.

226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees' employment - each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter."

[4] The Form F24C declaration, signed by Patrick Hill noted that the continued operation of the Agreement would be unfair to employees as there are no continuing benefits from the Agreement for them, and they would be better off under the Award. Examples include that there are some obligations imposed by the Agreement on employees, which are not imposed under the relevant Awards, and that some Agreement clauses are outdated and inconsistent with the terms of the relevant Awards and NES. Further, it was submitted that some Agreement clauses provide substantially similar to the equivalent clause in the relevant Award and so some employees would not be affected by the termination of the Agreement.

[5] Directions were issued on 7 March 2025 for the Employer to serve a copy of the F24B Application on its employees as well as a copy of the F24C Statutory Declaration and Directions. The Directions also provided that if any employee wished to be heard on the matter, they were to submit any views in relation to the Application by 14 March 2025.

[6] The Employer confirmed by way of email on 11 March 2025 that it had served a copy of the Application, Statutory Declaration and Directions on its employees.

[7] To date, the Commission has not received any correspondence from any employees of the employers.

[8] On 21 March 2025, I sent correspondence to the parties, seeking that a termination date be nominated. The Applicant replied this same day proposing the date of the decision as the termination date.

[9] I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from 21 March 2025.

[10]

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