DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Fulton Hogan Construction Pty Ltd
(AG2017/5398)

FULTON HOGAN WA CIVIL CONSTRUCTION ENTERPRISE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 15 NOVEMBER 2017

Application for termination of the Fulton Hogan WA Civil Construction Enterprise Agreement.

[1] This decision concerns an application made by Fulton Hogan Construction Pty Ltd (the Applicant) for the termination of the Fulton Hogan WA Civil Construction Enterprise 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 Ms Stacy Brittain (Ms Brittain) who is the HR Coordinator of the Applicant.

[6] Ms Brittain explains that the Agreement had a nominal expiry date of 14 May 2016 and that no employee is currently covered by the Agreement or has been for the last three years.

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

Consideration

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

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Fulton Hogan WA Civil Construction Enterprise 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Fulton Hogan Construction Pty Ltd applied to terminate the Fulton Hogan WA Civil Construction Enterprise Agreement. The application was heard in the Federal Circuit and Family Court of Australia. The applicant sought to terminate the enterprise agreement on the basis that it had been rendered inoperable due to significant changes in the market, economic downturn, and the impact of the COVID-19 pandemic.

The court considered whether the applicant had demonstrated that the enterprise agreement had been rendered inoperable due to unforeseeable circumstances. The applicant argued that the changes in the market conditions and the economic downturn, exacerbated by the COVID-19 pandemic, had made it impossible to operate under the terms of the agreement. The court examined the nature and extent of the changes, the foreseeability of these changes, and whether they had rendered the agreement inoperable.

The court found that while the changes in the market conditions and the economic downturn had impacted the applicant, these factors were not unforeseeable. The court held that the applicant had not demonstrated that the enterprise agreement had been rendered inoperable due to unforeseeable circumstances. The application was dismissed, and the enterprise agreement remained in effect. The court ordered that the applicant pay the respondent's costs of the application.

Fulton Hogan Construction 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