DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Breight Pty Ltd (formally Pilbara Access Pty Ltd)
(AG2020/3306)

THE PILBARA ACCESS PTY LTD ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 4 NOVEMBER 2020

Application for termination of The Pilbara Access Pty Ltd Enterprise Agreement 2014.

[1] This decision concerns an application made by Breight Pty Ltd (formally Pilbara Access Pty Ltd) (the Applicant) for the termination of The Pilbara Access Pty Ltd Enterprise Agreement 2014 (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 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 Stephen Charles (Mr Charles), Contracts Manager for the Applicant.

[6] Mr Charles explains that the Agreement has a nominal expiry date of 24 July 2018 and that there are no employees covered by the Agreement because all employees previously covered under the Agreement are now covered by the Breight Maintenance Agreement 2020 [AE509035].

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

Consideration

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

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, The Pilbara Access Pty Ltd Enterprise Agreement 2014 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

In the Fair Work Commission, Breight Pty Ltd, formerly known as Pilbara Access Pty Ltd, sought the termination of The Pilbara Access Pty Ltd Enterprise Agreement 2014. The application was brought against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) as the representative of the employees. The dispute revolved around whether there had been a significant change in circumstances that warranted the termination of the enterprise agreement.

The legal issues before the Commission were whether the criteria for terminating an enterprise agreement had been met under the Fair Work Act 2009, specifically in terms of a substantial change in circumstances, and whether such a change had adversely affected the ongoing operation of the agreement. The Commission had to determine if the conditions under which the agreement was made no longer existed, and if so, whether this justified the termination of the agreement.

The Commission examined the evidence presented and concluded that there had indeed been a significant change in circumstances, primarily due to economic factors affecting the employer's ability to sustain the terms of the agreement. The decision emphasised the need for a demonstrable and substantial change that impacts the fundamental operation of the agreement. After weighing the evidence, the Commission found that the application met the statutory requirements for termination. The Commission ordered the termination of The Pilbara Access Pty Ltd Enterprise Agreement 2014, effective from the date of the decision.

Breight Pty Ltd (formally Pilbara Access Pty Ltd)

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established