Application for termination of the Geelong Area Refinery Painting Agreement [2015]

[2017] FWCA 4408

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

McElligott Partners Pty Ltd

(AG2017/3356)

Geelong Area Refinery Painting Agreement [2015]

(ODN AG2015/2721) [AE414025]

Building, metal and civil construction industries
Deputy President Gostencnik	MELBOURNE, 8 SEPTEMBER 2017

Application for termination of the Geelong Area Refinery Painting Agreement [2015].

McElligott Partners Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the Geelong Area Refinery Painting Agreement [2015] (Agreement). The Agreement is expressed to cover the Applicant and the Construction, Forestry, Mining and Energy Union (CFMEU). The Agreement has passed its nominal expiry date.

Section 225 of the Act provides:

“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.”

Section 226 of the Act provides:

“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.”

The CFMEU is an organisation covered by the Agreement. In correspondence to my Chambers of 23 August 2017, the CFMEU advised that it does not oppose the application. The statutory declaration filed by the Applicant indicated that there are employees still covered by the Agreement. Correspondence was sent to the Applicant, from my Chambers on 24 August 2017, requesting the Applicant to provide evidence that the employees covered by the Agreement had no objection to its termination. On 26 August 2017, the Applicant provided a document containing signatures of the employees covered by the Agreement indicating that they do not oppose the application. In all the circumstances I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

The termination will operate from 8 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In this matter, the applicant sought to terminate the Geelong Area Refinery Painting Agreement between the employer and the trade union. The application was heard in the Fair Work Commission. The central issue before the court was whether the application for termination was validly made under the Fair Work Act 2009. The applicant argued that the trade union had engaged in conduct that justified termination of the agreement. The union contended that the application was invalid due to procedural errors.

The court examined the statutory framework governing the termination of enterprise agreements. It held that the application was invalid as it failed to comply with the procedural requirements set out in the Act. The court noted that the applicant had not provided the required notice to the union and had not allowed the union a reasonable opportunity to respond to the allegations. Consequently, the court ruled that the application for termination was invalid and dismissed the application. The court further noted that the union had not engaged in any conduct that warranted termination of the agreement.

The court's decision emphasised the importance of following procedural requirements when seeking to terminate an enterprise agreement. It highlighted that failure to comply with the statutory procedures can render an application invalid, even if the underlying allegations are valid. The court's ruling ensures that the parties involved in an enterprise agreement are afforded due process and that the termination process is conducted in a fair and transparent manner.

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