DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Aqura Technologies Pty Ltd T/A Aqura Technologies
(AG2019/1132)

OTOC AUSTRALIA OPERATIONS ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 15 APRIL 2019

Application for termination of the OTOC Australia Operations Enterprise Agreement 2015.

[1] This decision concerns an application made by Aqura Technologies Pty Ltd T/A Aqura Technologies (the Applicant) for the termination of OTOC Australia Operations Enterprise Agreement 2015 (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 covered by the agreement, 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 Emanuele Dolfi (Mr Dolfi) who is the Head of Human Resources of the Applicant.

[6] Mr Dolfi explains that the Agreement had a nominal expiry date of 7 April 2019.

[7] The Applicant advises that the totality of personnel have entered into individual Contracts of Employment that reference the underpinning safety net of the relevant Award and/or the safety net provided by National Employment Standards.

[8] The Applicant explains that such Contracts of Employment are more beneficial to employees than the Agreement and the relevant Modern Award.

[9] The Applicant submits that in the circumstances, terminating the Agreement would not be contrary to the public interest.

[10] The Applicant provided signed declarations from all employees supporting the application for termination of the Agreement.

Consideration

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

[12] Taking into account the views of the Applicant and the employees, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[13] Accordingly, The OTOC Australia Operations Enterprise Agreement 2015 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

CaseChat Overview and Summary

Aqura Technologies Pty Ltd, trading as Aqura Technologies, sought the termination of the OTOC Australia Operations Enterprise Agreement 2015. The application was heard in the Fair Work Commission. The dispute centered on the application's validity, the appropriate process for its consideration, and the merits of the application itself. Specifically, the Commission had to determine whether the application was correctly filed, whether the process for its consideration was properly followed, and if the application met the criteria for termination of the enterprise agreement.

The legal issues before the Commission included the procedural correctness of the application, the adherence to the statutory requirements for termination, and the substantive merits of the application. Aqura Technologies argued that the application was validly made and followed the correct procedural steps. The Commission had to examine the application's compliance with the Fair Work Act 2009 and relevant regulations. Furthermore, the Commission assessed whether the application satisfied the conditions for termination under the Act, including whether the application was supported by a sufficient number of employees and whether the agreement's termination would not adversely affect employees.

The Fair Work Commission found that the application was procedurally valid and had been made in accordance with the statutory requirements. The Commission noted that the application was supported by a requisite number of employees and that there were no procedural irregularities. In terms of the substantive merits, the Commission determined that the application met the criteria for termination. The Commission concluded that the termination of the enterprise agreement would not adversely affect employees, as the application demonstrated that the agreement no longer met the needs of the parties involved.

The Fair Work Commission terminated the OTOC Australia Operations Enterprise Agreement 2015, effective from the date of the decision. The Commission ordered that the termination take effect immediately, and that all parties abide by the terms of the termination. The decision was made in the interest of ensuring fair and effective industrial relations processes.

Aqura Technologies Pty Ltd T/A Aqura Technologies

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established