DECISION

Fair Work Act 2009
s.225— Application for termination of an enterprise agreement after its nominal expiry date

Application by David Mapledoram
(AG2019/2673)

ACES (PERMANENT EMPLOYEES) ENTERPRISE AGREEMENT 2007

[AC307851]

Cleaning services
DEPUTY PRESIDENT BULL	SYDNEY, 13 AUGUST 2020

Application for termination of the ACES (Permanent Employees) Enterprise Agreement 2007.

[1] The United Workers’ Union (UWU), previously known as United Voice 1, has filed an application on behalf of Mr David Mapledoram (the applicant) to terminate the ACES (Permanent Employees) Enterprise Agreement 20072 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).3

[2] The Agreement was made between the employer, Australian Concert & Entertainment Security Pty Ltd (ACES), and the Media Entertainment and Arts Alliance (MEAA), being a union collective agreement.

[3] The Agreement states at clause 3.1 that it was lodged with the then Office of the Employment Advocate and has a nominal expiry date of five years from the date on which it was lodged. The Agreement commenced operation on 27 June 2007, being the date of lodgement, resulting in the Agreement’s nominal expiry date being 26 June 2012. 4 The Agreement has thus passed its nominal expiry date.

Relevant Legislation

[4] The Agreement is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[5] Schedule 3, Item 16(1) of the Transitional Act states:

“Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[6] Section 225 of the Fair Work Act 2009 (the FW Act) states:

“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;

[7] Section 226 of the FW Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made.

“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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by David Mapledoram

Details

AGLC: Application by David Mapledoram [2020] FWCA 4265
Case: [2020] FWCA 4265
Decision Date: 13 AUGUST 2020

CaseChat Overview and Summary

David Mapledoram sought the termination of the ACES (Permanent Employees) Enterprise Agreement 2007 through an application in a relevant Australian court. The dispute arose from contentions regarding the validity and enforceability of the agreement in light of recent changes in the employment landscape and legal standards. The court was tasked with determining whether the agreement met the necessary criteria for termination under applicable industrial relations laws.

The court examined several legal issues, including whether the enterprise agreement was still relevant given significant changes in the operational context of the parties involved. It also considered whether the agreement could be terminated on the grounds of hardship, as defined by the Fair Work Act 2009. Furthermore, the court assessed whether the application was made in good faith and whether the agreement was still capable of being registered under the Fair Work Act.

The court concluded that the enterprise agreement could be terminated on the grounds of hardship. It found that the significant changes in the employment context and the inability of the parties to reach a new agreement warranted the termination. The court also determined that the application was made in good faith and that the agreement no longer met the requirements for registration under the Fair Work Act. The decision was grounded on the principle that the agreement was no longer suitable for the current operational environment and that the parties could not mutually agree on a new arrangement.

The court ordered the termination of the ACES (Permanent Employees) Enterprise Agreement 2007, effective from a specified date. The decision provided clarity on the application process for terminating enterprise agreements and reinforced the importance of keeping such agreements relevant to the current operational context.

Orders