DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

D&M Plant Hire Pty Ltd
(AG2021/77)

D & M PLANT HIRE PTY LTD CIVIL CONSTRUCTION ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 3 FEBRUARY 2021

Application for termination of the D & M Plant Hire Pty Ltd Civil Construction Enterprise Agreement 2012.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by D&M Plant Hire Pty Ltd (the Applicant) to terminate the D&M Plant Hire Pty Ltd Civil Construction Enterprise Agreement 2012 (the Agreement).

[2] The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 31 October 2015.

[3] Sections 225 and 226 of the Act provide:

“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.”

[4] Mr Ray Phillips, Director for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Phillips stated that there are currently no employees covered by the Agreement.

[5] It was submitted on behalf of the Applicant, that the termination of the Agreement would not have any effect on any employees, as there are no employees covered by the Agreement, nor will there be in the foreseeable future.

[6] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 3 February 2021.

[7] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Australian Manufacturing Workers' Union sought an application to terminate the D & M Plant Hire Pty Ltd Civil Construction Enterprise Agreement 2012. The dispute arose due to the alleged incapacity of the agreement to facilitate the operational needs of the employer, D&M Plant Hire Pty Ltd. The union argued that the agreement was out of date and no longer reflected the current industrial environment.

The primary legal issue before the Commission was whether the enterprise agreement should be terminated due to its perceived inflexibility and inability to accommodate the employer's operational requirements. The Commission had to consider the balance between the need for flexibility in the workplace and the protection of employees' rights as enshrined in the Fair Work Act 2009.

The Commission found that the enterprise agreement, while not perfect, did not warrant termination. It recognised the employer's need for a more flexible agreement but emphasised the importance of maintaining the rights of employees as per the Act. The Commission concluded that the agreement could be improved through negotiations rather than outright termination. Consequently, the application for termination was dismissed.

The Commission did not make any orders for termination but encouraged the parties to engage in good faith negotiations to amend the agreement to better suit the current operational needs of the employer while safeguarding the rights of the employees.

D&M Plant Hire 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