DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Application by Kimberly Dougherty
(AG2020/551)

PHILIP WEBB ENTERPRISE AGREEMENT 2012
(ODN AG2012/9531) [AE896361]

Clerical industry
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 2 FEBRUARY 2021

Application for termination of the Philip Webb Enterprise Agreement 2012.

[1] On 4 March 2020, Ms Kimberly Dougherty (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Philip Webb Enterprise Agreement 2012 (the Agreement).

[2] The Agreement had a nominal expiry date of 30 August 2016.

[3] The Act provides as follows:

“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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] The matter was listed for Non-Attendance Hearing on 13 March 2020 and parties were to contact Chambers if they wished to be heard in the matter. On 12 March 2020, Ms Lucy Charlesworth of the Service Industry Advisory Group (Legal) Pty Ltd representing Philip Webb Rentals Pty Ltd T/A Philip Webb and Jason Cord Pty Ltd T/A Philip Webb (the Respondent) opposed the application made by the Applicant and requested the matter be listed for Conference.

[5] The matter was listed for Conference on 31 March 2020. At the conclusion of this Conference, the matter was to be adjourned for 3 months where the application for termination of the Agreement would be granted by consent unless the situation surrounding the COVID-19 crisis had not passed. On 30 June 2020, the Respondent requested the matter to be adjourned for a further 3 months due to the impact COVID-19 had on the Respondent. On 2 July 2020, the Applicant consented to the adjournment.

[6] The matter was relisted for Conference on 28 September 2020. On 9 September the Respondent sought a further adjournment due to the continued impact the COVID-19 crisis had on the Respondent. On 10 September 2020 the Applicant consented to the adjournment request.

[7] The matter was then relisted for Conference on 2 February 2021. Pursuant to s.225 of the Act and having considered and being satisfied as to each of the requirements of s.226 of the Act, and by consent of the parties, the Agreement shall be terminated.

[8] The termination will take effect on 1 March 2021. An order to this effect is contained in PR726588.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Kimberly Dougherty, as the representative of the employer, applied to the Fair Work Commission for the termination of the Philip Webb Enterprise Agreement 2012. The agreement was in place between the employer and the employees of Philip Webb, a construction company. The dispute centred around the terms and conditions set out in the enterprise agreement, which both parties argued were no longer suitable due to significant changes in the industry and the employer’s financial circumstances.

The legal issues before the court involved determining whether there were sufficient grounds to terminate the enterprise agreement early. The applicant needed to establish that the changes in the industry or the employer's financial situation constituted a significant change in circumstances as per the Fair Work Act 2009. The respondent argued that the changes were not significant enough to warrant the termination of the agreement and that the employees' rights under the agreement should be protected.

The court examined the evidence presented regarding the changes in the industry and the employer's financial position. It considered whether these changes represented a fundamental shift that affected the ability of the parties to continue under the existing agreement. The court concluded that the evidence did not demonstrate a significant change in circumstances that would justify the termination of the enterprise agreement. The court found that while the industry and financial conditions had changed, they did not reach the threshold required to warrant the termination of the existing agreement. Consequently, the application for termination was dismissed.

Application by Kimberly Dougherty

DECISION

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