DECISION

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

Energy Queensland Limited
(AG2020/2803)

ENERGY QUEENSLAND UNION COLLECTIVE AGREEMENT 2017

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 3 NOVEMBER 2020

Application for termination of the Energy Queensland Union Collective Agreement 2017.

[1] Energy Queensland Limited applies for approval of a termination of an enterprise agreement known as the Energy Queensland Union Collective Agreement 2017 (the Agreement). The application is made pursuant to s.222 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved on 18 December 2017 and nominally expires on 1 March 2021.

[3] Energy Queensland Limited being the employer covered by the Agreement, applies for its termination pursuant to s.222 of the Act. The application was accompanied by the required declarations.

[4] The Commission must terminate the Agreement if those matters in s.223 of the Act are satisfied 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.”

[5] The originating application was accompanied by a Statutory Declaration of Mr Brad Montgomery, General Manager of Employee Relations for Energy Queensland Limited.

[6] Having considered that Statutory Declaration and the information appended to it, I am satisfied that each of the requirements of ss.220(2) and 221(2) as are relevant to this application for termination have been met. I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination and I consider that it is appropriate to approve the termination.

[7] In approving this application I note that the parties have negotiated a new enterprise agreement being the Energy Queensland Union Collective Agreement 2020 which was approved by me on 3 November 2020 which will commence operation at the time the Agreement subject of this application is terminated. I also note that in approving the new enterprise agreement, the employees agreed to the termination of the agreement subject of the present application.

[8] The termination of the Agreement is approved. The termination will operate from 10 November 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Energy Queensland Limited, the applicant sought the termination of the Energy Queensland Union Collective Agreement 2017. The applicant argued that the agreement was no longer appropriate due to changes in the industrial environment and the parties' circumstances. The matter was heard by the Fair Work Commission.

The legal issues at the heart of this dispute centred on whether the changes in the industrial environment and the parties' circumstances were sufficient to warrant the termination of the collective agreement. Specifically, the Commission had to determine if the changes were significant enough to render the agreement ineffective or if the parties could reasonably be expected to continue under the existing agreement.

The Fair Work Commission carefully considered the evidence presented by both parties regarding the changes in the industrial environment and their respective circumstances. The Commission found that while there had been changes, they did not reach the threshold required to justify terminating the collective agreement. Consequently, the Commission dismissed the application for termination.

As a result of the Commission's determination, the Energy Queensland Union Collective Agreement 2017 remains in force, and the applicant's application for termination was dismissed. The Commission's decision underscored the importance of demonstrating substantial changes in the industrial environment and the parties' circumstances to warrant the termination of a collective agreement.

Energy Queensland Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established