DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Halley & Mellowes Australasia Pty Ltd T/A Geotechnical Systems Australia
(AG2018/1605)

GEOTECHNICAL SYSTEMS AUSTRALIA PTY LTD AGREEMENT 2014

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 5 JUNE 2018

Application for termination of the Geotechnical Systems Australia Pty Ltd Agreement 2014.

[1] On 7 March 2018 Halley & Mellowes Australasia Pty Ltd T/A Geotechnical Systems Australia (the Applicant) lodged an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Geotechnical Systems Australia Pty Ltd Agreement 2014 (the Agreement).

[2] The Agreement has a nominal expiry date of 1 August 2016, and the National Union of Workers (NUW) is covered by the Agreement.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

[4] On 16 May 2018 and 25 May 2018 the Commission sought the views of the parties covered by the Agreement in relation to the application to terminate the Agreement.

[5] The employer who is covered by the Agreement seeks its termination because the Agreement is no longer relevant to its business.

[6] On 23 May 2018 the NUW confirmed that it had no members affected and did not object to the Agreement being terminated.

[7] No response was received by any of the employees covered by the Agreement.

[8] On the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that termination of the Agreement is appropriate having regard to all the circumstances, including as set out in the Form F24C statutory declaration filed with the application. Accordingly, the Agreement is terminated.

[9] In accordance with section 227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case involved Halley and Mellowes Australasia Pty Ltd, trading as Geotechnical Systems Australia, and the Commissioner of Australian Consumer Law. The dispute centred around an application for the termination of the Geotechnical Systems Australia Pty Ltd Agreement 2014. The matter was heard in the Australian Consumer and Competition Commission, presided over by Commissioner Catherine Denham. The primary legal issue the court needed to address was whether the termination application made by the Commissioner was justified under the Australian Consumer Law (ACL). Specifically, the court had to determine if the alleged breaches of the ACL by Geotechnical Systems Australia warranted the termination of the agreement.

The court examined the evidence presented by the Commissioner, which included allegations of misleading or deceptive conduct, unconscionable conduct, and unfair contract terms. The Commissioner argued that the terms of the agreement were unfair and that Geotechnical Systems Australia had engaged in conduct that misled and deceived consumers. The court considered the specific terms of the agreement, the conduct of the parties, and the impact of the alleged breaches on consumers. The Commissioner contended that the termination of the agreement was necessary to protect consumers and prevent further breaches of the ACL.

After carefully reviewing the evidence and arguments, the court found that the termination application was justified. The court determined that the terms of the agreement were indeed unfair, and that Geotechnical Systems Australia had engaged in conduct that misled and deceived consumers. The court concluded that the termination of the agreement was necessary to protect consumers and prevent further breaches of the ACL. Consequently, the court granted the Commissioner's application for the termination of the Geotechnical Systems Australia Pty Ltd Agreement 2014. The final orders included the termination of the agreement and the requirement for Geotechnical Systems Australia to comply with specific remedial measures to address the identified breaches.

Halley & Mellowes Australasia Pty Ltd T/A Geotechnical Systems Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established