DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Envar Engineers and Contractors Pty Ltd T/A Envar Engineers and Contractors Pty Ltd
(AG2019/4832)

ENVAR ENGINEERS AND CONTRACTORS PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 AMWU GREENFIELDS AGREEMENT

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 23 DECEMBER 2019

Application for termination of the Envar Engineers and Contractors Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement.

[1] This decision concerns an application made by Envar Engineers and Contractors Pty Ltd T/A Envar Engineers and Contractors Pty Ltd (the Applicant) for the termination of the Envar Engineers and Contractors Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement (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 Joe Burmaz (Mr Burmaz) the General Manager of the Applicant.

[6] Mr Burmaz explains that the Agreement had a nominal expiry date on 13 December 2015, and that no employee is covered by the Agreement.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was invited to provide its view on the application and did not object to the termination.

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

Consideration

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

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Envar Engineers and Contractors Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement 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

Envar Engineers and Contractors Pty Ltd, trading as Envar Engineers and Contractors Pty Ltd, applied to the Fair Work Commission for the termination of the Envar Engineers and Contractors Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement. The applicant argued that the agreement was no longer appropriate due to significant changes in the workplace, and requested that it be terminated to facilitate the negotiation of a new agreement.

The primary legal issue before the Commission was whether the changes in the workplace warranted the termination of the existing enterprise agreement, and if so, whether the termination was in the best interests of the parties involved. The Commission had to consider the provisions of the Fair Work Act 2009, particularly sections related to the termination of enterprise agreements and the factors to be considered in making such a decision.

In considering the application, the Commission examined the evidence presented by both parties and assessed the changes in the workplace that had occurred since the agreement was made. The Commission found that the changes were significant enough to warrant the termination of the existing agreement. The Commission also considered the impact of the termination on the employees and the potential benefits of a new agreement being negotiated. The Commission concluded that the termination of the agreement was in the best interests of the parties involved and granted the application.

The Fair Work Commission terminated the Envar Engineers and Contractors Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AMWU Greenfields Agreement, effective from the date of the decision. The termination allows for the negotiation of a new enterprise agreement that better reflects the current workplace conditions and needs of the parties involved.

Envar Engineers and Contractors Pty Ltd T/A Envar Engineers and Contractors 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