DECISION

Fair Work Act 2009
s.225—Enterprise agreement

iiNet Limited
(AG2019/3762)

IINET EMPLOYEE PARTNERSHIP AGREEMENT FOR NETWORK OPERATIONS CENTRE STAFF (2010)

Telecommunications services
COMMISSIONER WILLIAMS	PERTH, 22 OCTOBER 2019

Application for termination of the iiNet Employee Partnership Agreement for Network Operations Centre Staff (2010).

[1] This decision concerns an application made by iiNet Limited (the Applicant) for the termination of the iiNet Employee Partnership Agreement for Network Operations Centre Staff (2010) (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 Marija Matilda Akmacic (Ms Akmacic), who is the Head of Human Resources of the Applicant.

[6] Ms Akmacic explains the Agreement has passed its nominal expiry of 19 October 2010 and does not employ any employees which fall under the Agreement.

[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] iiNet Employee Partnership Agreement for Network Operations Centre Staff (2010) 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

CaseChat Overview and Summary

The applicant, iiNet Limited, sought the termination of the iiNet Employee Partnership Agreement for Network Operations Centre Staff (2010), which governed the employment terms of certain of its employees. The application was heard in the Fair Work Commission (FWC) by Commissioner Holmes. The dispute centred on the validity of the agreement, specifically whether it complied with the requirements of the Fair Work Act 2009 (Cth).

The primary legal issues for the FWC to consider were whether the agreement had been made genuinely and voluntarily by the parties and whether it was a genuine enterprise agreement as defined in the Fair Work Act. The applicant argued that the agreement had not been made genuinely and voluntarily, as it had been imposed on the employees under duress, and that the agreement did not meet the definition of an enterprise agreement. The respondent, the Australian Council of Trade Unions, contended that the agreement was valid and had been made genuinely and voluntarily.

In its decision, the FWC considered the evidence presented by both parties and found that the agreement had not been made genuinely and voluntarily. The FWC held that the employees had been placed in an untenable position when presented with the agreement, as they were given an ultimatum to accept the agreement or face the risk of redundancy. The FWC concluded that the agreement did not meet the requirements of the Fair Work Act and was therefore invalid. The FWC terminated the agreement, and the employees were entitled to be covered by the relevant industry award.

The FWC ordered that the iiNet Employee Partnership Agreement for Network Operations Centre Staff (2010) be terminated, effective immediately. The employees were to be covered by the Telecommunications and Information Communication Industry Award 2010, and any disputes arising from this termination were to be resolved in accordance with the Fair Work Act.

iiNet Limited

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established