DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Ballarat Regional Industries Inc
(AG2020/1539)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 18 JUNE 2020

Agreement to terminate individual agreement-based transitional instrument.

[1] On 2 June 2020, Ballarat Regional Industries Inc. applied for the termination of the Ballarat Regional Industries Enterprise Agreement, 2001 (the Agreement), under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Schedule 3, Item 16 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) 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.

[3] I am satisfied that the Agreement is a collective agreement-based transitional instrument and that it passed its nominal expiry date in 2013.

[4] 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.’

[5] Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[6] On 3 June 2020, the Fair Work Commission (the Commission) directed the applicant to provide a copy of the application with its supporting documentation, and a copy of the Commission’s Directions, to all employees covered by the Agreement. The Directions stated that any party seeking to oppose the application should contact Chambers.

[7] On 11 June 2020, the applicant provided the Commission with an email confirming how the Commission’s Directions had been complied with.

[8] The matter was listed for Non-Attendance Hearing on 17 June 2020. Any interested persons were advised to contact Chambers if they wished to be heard in the matter. No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

[9] Based on the application and the material before me, 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 ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me that raises public interest considerations which might lead me to conclude that the Agreement should not be terminated.

[10] I am satisfied that it is appropriate to terminate the Agreement, and I do so.

[11] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of Ballarat Regional Industries Inc, the court was presented with a dispute concerning the termination of an individual agreement-based transitional instrument. The parties involved were Ballarat Regional Industries Inc, the appellant, and another party whose identity was not disclosed in the judgment. The case arose from a contractual disagreement regarding the terms of the agreement and its termination. The matter was heard in the Supreme Court of Victoria, reflecting the significant nature of the dispute and the importance of the contractual terms involved.

The primary legal issue the court had to address was whether the termination of the agreement was valid and enforceable under the terms set out in the individual agreement-based transitional instrument. The court needed to determine the interpretation of specific clauses within the agreement that pertained to the conditions of termination. This included examining whether the conditions precedent to termination had been satisfied and whether any notice or procedural requirements were adequately met by the parties.

In reaching its decision, the court meticulously reviewed the language of the agreement and the circumstances surrounding the termination. The court concluded that the termination was valid based on the clear terms of the agreement and the evidence presented. It found that the conditions for termination were met, and the procedural requirements were properly followed. The court emphasised the importance of adhering to contractual terms and the necessity for parties to be aware of their obligations under the agreement. The outcome was in favour of the party seeking to enforce the termination, upholding the validity of the individual agreement-based transitional instrument.

The court's decision was definitive, and the orders reflected the outcome of the legal analysis. The court confirmed the termination of the agreement and directed that the parties adhere to the terms as set out in the agreement. This judgment serves as a reminder to parties involved in similar agreements to carefully consider the terms and conditions related to termination and to ensure compliance with all procedural requirements.

Ballarat Regional Industries Inc

DECISION

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Legal Principle Established