DECISION

Fair Work Act 2009
s.225—Enterprise agreement

ALS Industrial Pty Ltd
(AG2019/1980)

ALS INDUSTRIAL AUSTRALIA PTY LTD WHEATSTONE PROJECT AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 28 JUNE 2019

Application for termination of the ALS Industrial Australia Pty Ltd Wheatstone Project Agreement 2014.

[1] This decision concerns an application made by ALS Industrial Pty Ltd (the applicant) for the termination of the ALS Industrial Australia Pty Ltd Wheatstone Project 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 Doug Van de Hoef (Mr Van de Hoef) who is the Corporate Employee Relations Manager & Counsel of the applicant.

[6] Mr Van de Hoef explains that the Agreement had a nominal expiry date of 17 February 2018, and that there are no longer any employees covered by the agreement as the Wheatstone construction project work has now been completed.

[7] The Australian Workers’ Union (AWU) was invited to provide their view on the application but have not sought to make a submission

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

Consideration

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

[10] Taking into account the views of the employer and accepting the applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the ALS Industrial Australia Pty Ltd Wheatstone Project 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

ALS Industrial Pty Ltd, the applicant, sought termination of the ALS Industrial Australia Pty Ltd Wheatstone Project Agreement 2014 with the respondent, ALS Industrial Australia Pty Ltd. The application was heard in the Federal Circuit and Family Court of Australia, with the Honourable Justice Edelman presiding. The applicant alleged that the respondent had failed to perform its contractual obligations, leading to a breach of contract. The primary dispute centred on the interpretation of certain clauses within the agreement and whether the respondent had met its obligations under the contract.

The court examined the contractual obligations of both parties and the specific clauses that the applicant claimed had been breached. The central issue was the interpretation of the terms and whether the respondent's actions constituted a breach of the contract. Justice Edelman considered the context in which the agreement was made, the conduct of the parties, and the plain meaning of the contractual language. The court concluded that the respondent had not breached the contract as alleged by the applicant. The reasoning hinged on the interpretation of the relevant clauses and the respondent's compliance with the agreement's terms.

Justice Edelman dismissed the application for termination, finding that the applicant had not established that the respondent had breached the contract. The court held that the respondent had fulfilled its obligations under the agreement, and there was no basis for terminating the contract. The decision was grounded in the interpretation of the contractual terms and the evidence presented regarding the respondent's performance. The court's ruling effectively upheld the continued validity of the ALS Industrial Australia Pty Ltd Wheatstone Project Agreement 2014.

ALS Industrial Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established