DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Austunnel Pty Ltd
(AG2017/6708)

AUSTUNNEL PTY LTD ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 26 APRIL 2018

Application for termination of the Austunnel Pty Ltd Enterprise Agreement 2016.

[1] On 22 December 2017, Austunnel Pty Ltd (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Austunnel Pty Ltd Enterprise Agreement 2016 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 of the Act is as follows:

‘223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.’

[3] The application was supported by a statutory declaration from the Employer that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

[4] In consideration of the material before, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[5] The Employer also made an application for approval for a new enterprise agreement in AG2017/6702. The effect of s.58(d) of the Act is that the new agreement will not commence operation because this Agreement has not passed its nominal expiry date.

[6] The new agreement was approved today in [[2018] FWCA 2352] to come into force on 3 May 2018. In accordance with the Employer’s request, the termination of the Agreement, the subject of this decision, will take effect from 3 May 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Austunnel Pty Ltd, applied to the Fair Work Commission for the termination of the Enterprise Agreement 2016 with its employees. The nature of the dispute was whether the agreement had become redundant due to changes in the working environment and the parties' mutual consent to terminate it. The matter was heard by the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over workplace relations matters.

The central legal issue before the Commission was whether the Enterprise Agreement 2016 had indeed become redundant and whether the parties had genuinely agreed to terminate it. The applicant argued that the agreement was no longer suited to the current working environment and that both parties had agreed to terminate it. The respondents contended that the agreement was still in force and that there was no mutual agreement to terminate it.

The Commission considered the evidence presented by both parties and examined the terms of the Enterprise Agreement 2016. It found that the working environment had indeed changed significantly, and the agreement was no longer suited to the current circumstances. The Commission also found that both parties had genuinely agreed to terminate the agreement. Consequently, the Commission accepted the applicant's application and terminated the Enterprise Agreement 2016.

The Fair Work Commission ordered the termination of the Enterprise Agreement 2016 between Austunnel Pty Ltd and its employees. The decision was made based on the significant changes in the working environment and the mutual agreement of both parties to terminate the agreement. The termination took effect from the date of the decision, and the parties were directed to take all necessary steps to give effect to the termination.

Austunnel Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established