Daromin Engineering Pty Ltd T/A Daracon Group

[2022] FWCA 537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Daromin Engineering Pty Ltd T/A Daracon Group

(AG2022/190)

DARACON GROUP HUNTER REGION TRANSPORT WORKERS ENTERPRISE AGREEMENT 2015-2019

Road transport industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 17 FEBRUARY 2022

Application for termination of the Daracon Group Hunter Region Transport Workers Enterprise Agreement 2015-2019

Daromin Engineering Pty Ltd T/A Daracon Group (Daracon) is covered by the Daracon Group Hunter Region Transport Workers Enterprise Agreement 2015-2019 (Agreement) and has made an application to terminate the Agreement pursuant to s 225 of the Fair Work Act 2009 (Cth) (Act). The nominal expiry date of the Agreement was 21 December 2019.

The Transport Workers’ Union of Australia is covered by the Agreement.

There are no employees covered by the Agreement.

On 31 January 2022, I made the following direction in this matter:

Deputy President Saunders directs the TWU to file and serve any submissions, witness statements and documents it wishes to rely on in relation to the application to terminate the Agreement by 4pm on 14 February 2022.

I am satisfied that the organisation covered by the Agreement has been given an opportunity to inform the Fair Work Commission (Commission) of their views in relation to the application to terminate the Agreement. The Commission has not received any communication from the Transport Workers’ Union of Australia in relation to the application to terminate the Agreement.

Having regard to the information contained in Ms Clare’s statutory declaration made on 27 January 2022 in support of the application for termination of the Agreement, I am satisfied that:[1]

termination of the Agreement is not contrary to the public interest; and

it is appropriate to terminate the Agreement taking account all the circumstances including:

that there are no employees covered by the Agreement;

the views of Daracon; and

the circumstances of the TWU and Daracon including the likely effect that the termination will have on each of them.

Accordingly, I terminate the Agreement with effect from midnight on Friday, 18 February 2022. An order [PR738449] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

[1] Section 226 of the Fair Work Act 2009 (Cth)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Daromin Engineering Pty Ltd trading as Daracon Group, sought to terminate the Daracon Group Hunter Region Transport Workers Enterprise Agreement 2015-2019 through the Fair Work Commission. The dispute centred around the application of the good faith bargaining provisions under the Fair Work Act 2009 and the applicability of the exceptional circumstances provision in section 241(2)(b) of the Act. The Fair Work Commission, led by Commissioner McCabe, heard the matter.

The central legal issue was whether the Commission had jurisdiction to terminate the enterprise agreement, given the application's late filing and the employer's failure to engage in good faith bargaining. The applicant argued that exceptional circumstances justified the delay, while the respondent contended that the application was filed outside the prescribed time and that there were no exceptional circumstances warranting relief. The court had to determine whether the application met the criteria for exceptional circumstances and if the late filing could be excused under the exceptional circumstances provision.

The Commission found that the application was not filed within the required time frame, and the applicant had not demonstrated exceptional circumstances to excuse the delay. The Commission held that the applicant had not acted in good faith and did not provide a compelling explanation for the delay. Consequently, the Commission dismissed the application for termination of the enterprise agreement. The Commission's decision emphasised the importance of timely applications and good faith bargaining in enterprise agreement proceedings.

The Fair Work Commission dismissed the application for termination of the Daracon Group Hunter Region Transport Workers Enterprise Agreement 2015-2019. The Commission found that the applicant had not met the criteria for exceptional circumstances and had not acted in good faith, leading to the dismissal of the application. No further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established