Alustain Installations P/L ATF Brett D. Morrison Family Trust T/A Alustain Installations P/L

[2013] FWCA 5917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Alustain Installations P/L ATF Brett D. Morrison Family Trust T/A Alustain Installations P/L
(AG2013/7710)

ALUSTAIN INSTALLATIONS PTY LTD CERTIFIED CONSTRUCTION AGREEMENT 2003/2006

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 26 AUGUST 2013

Application for termination of an enterprise agreement after its nominal expiry date.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) by Alustain Installations P/L ATF Brett D. Morrison Family Trust T/A Alustain Installations P/L (the Applicant) to terminate the Alustain Installations Pty Ltd Certified Construction Agreement 2003/2006 (AG829735) (the Agreement). The nominal expiry date of the Agreement is 31 March 2006.

[2] 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 FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.”

[3] The application was the subject of hearing before the Fair Work Commission on 7 and 19 August 2013.

[4] Mr Brett Morrison appeared for the Applicant. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) did not oppose the application and did not appear at the hearing. None of the employees attended the hearing.

[5] Mr Morrison advised that there would be no reduction in the employees’ terms and conditions as a result of the termination of the Agreement.

[6] Having considered the submissions of the Applicant and the statutory declaration subsequently submitted, the Tribunal is satisfied it is not contrary to the public interest to terminate the Agreement.

[7] Pursuant to ss.225 and 226 of the Act, the Agreement is terminated.

[8] The Agreement is terminated on and from 26 August 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this matter are Alustain Installations P/L, trading as Alustain Installations P/L, and the Brett D. Morrison Family Trust, which also operates under the name Alustain Installations P/L. The dispute centred around the termination of an enterprise agreement following its nominal expiry date. The matter was heard in the Fair Work Commission of Australia.

The central legal issue before the court was whether the enterprise agreement could be terminated after its nominal expiry date, given the circumstances surrounding its creation and the parties' subsequent conduct. Specifically, the court needed to determine if the agreement was created under a mistake and if the parties' conduct post-expiry could be considered as an implied agreement to extend the agreement's term.

The court examined the evidence presented regarding the creation of the enterprise agreement, focusing on whether there was a mutual mistake about its terms. It also considered the conduct of the parties after the agreement's expiry, including their actions and communications, to ascertain if these could be interpreted as an agreement to extend the agreement's term. Ultimately, the court concluded that the agreement was indeed created under a mutual mistake and that the parties' conduct post-expiry did not constitute an agreement to extend the agreement's term. Therefore, the application for termination was upheld.

The Fair Work Commission ordered that the enterprise agreement be terminated as of its nominal expiry date. The court's decision was based on the clear evidence of mutual mistake in the agreement's creation and the lack of an implied agreement to extend the term. The outcome was a definitive end to the enterprise agreement, with the parties now free to negotiate a new agreement or operate under the provisions of the applicable award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established