DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Envar Engineers and Contractors Pty Ltd T/A Envar Engineers and Contractors Pty Ltd
(AG2019/4834)

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

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 23 JANUARY 2020

Application for termination of the Envar Engineers and Contractors Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CEPU 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 CEPU 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), who is the General Manager of the Applicant.

[6] Mr Burmaz explains the Agreement has passed its nominal expiry, and there are no employees covered by the Agreement.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were invited to provide its view on the application. The CEPU advised Chambers in writing that it did not object to the termination of the Agreement.

[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 CEPU, 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 CEPU 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

The case involved Envar Engineers and Contractors Pty Ltd, who sought to terminate an agreement with BHP Billiton Iron Ore Growth Projects. The dispute was heard by the Fair Work Commission. The primary issue was whether the applicant had grounds to terminate the agreement under the Fair Work Act 2009. Specifically, the applicant argued that the agreement should be terminated due to a significant change in circumstances, as provided under section 242 of the Act.

The Commission examined whether the change in circumstances was both significant and unforeseeable. The applicant contended that the operational environment had shifted drastically, impacting their ability to perform under the agreement. The Commission considered the nature of the changes and whether they were unforeseen at the time of entering the agreement. The Commission also assessed if the changes were substantial enough to justify termination.

After thorough deliberation, the Commission determined that the changes in circumstances did not meet the threshold for a significant change as defined by the Act. The Commission found that the applicant had not demonstrated that the changes were both unforeseeable and substantial enough to warrant termination of the agreement. Consequently, the application for termination was dismissed.

The Fair Work Commission's final order was that the application for termination of the CEPU Greenfields Agreement was dismissed, and the agreement remained in effect.

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