Wormald Australia Pty Ltd Trading as Wormald Fire

WORMALD, SUNSHINE COAST FIRE EQUIPMENT DEPARTMENT FIELD TECHNICIAN ENTERPRISE AGREEMENT 2020-2023

Application for termination of the Wormald Sunshine Coast Fire Equipment Field Technician Enterprise Agreement 2020 - 2023

[1] This decision concerns an application made by Wormald Australia Pty Ltd Trading AS Wormald Fire for the termination of the Wormald Sunshine Coast Fire Equipment Field Technician Enterprise Agreement 2020 - 2023 (Agreement). The application is made under s.225 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement that nominally expired on 1 July 2023.

[2] Subdivision D of Division 7 of Part 2-4 of the Act sets out the mechanism by which an enterprise agreement may be terminated after it has passed its nominal expiry date.

[3] Section 225 of the Act allows an employer to apply to the Commission for the termination of an enterprise agreement that has passed its nominal expiry date. Sections 225 and 226 of the Act read:

"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 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);

(b) each employer;

(c) each employee organisation (if any).

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] I am satisfied that the two threshold requirements set out in s.225 of the Act have been met. Firstly, the Agreement has passed its nominal expiry date. Secondly, the Applicant was an employer covered by the Agreement as at the time that this Application was made.

[5] The Applicant seeks termination of the Agreement under s.226(1)(b) of the Act. It points out that the Agreement does not currently cover or apply to any employees, and that there are no employee organisations (unions) covered by the Agreement.

[6] The Applicant has provided, in support of its Application, a statutory declaration from Mr David Cunneen, who is the Human Resources Director of the Applicant. Mr Cunneen explains that the employer's scope of work under the Agreement has ceased, and that no employees are employed under the Agreement.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

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

[9] There is no evidence of any of the matters under s.226(4) of the Act applying. Nor am I aware of any other relevant matters for the purposes of s.226(5).

[10] Taking into account the views of the Applicant (as employer), and accepting the Applicant's evidence that there are no employees to whom the Agreement covers or applies, I am satisfied that it is appropriate to terminate the Agreement.

[11] Accordingly, the Agreement must be terminated. Pursuant to s.227 of the Act, the termination of the Agreement is to take effect on and from the date of this decision.

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