DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Jan De Nul (Australia) Pty Ltd
(AG2020/1114)

JAN DE NUL (AUSTRALIA) PTY LTD AND THE AUSTRALIAN MANUFACTURING WORKERS' UNION PILBARA GREENFIELDS AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 6 MAY 2020

Application for termination of the Jan De Nul (Australia) Pty Ltd and the Australian Manufacturing Workers' Union Pilbara Greenfields Agreement 2011.

[1] This decision concerns an application made by Jan De Nul (Australia) Pty Ltd (the Applicant) for the termination of the Jan De Nul (Australia) Pty Ltd and the Australian Manufacturing Workers' Union Pilbara Greenfields Agreement 2011 (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 Paul Janssens (Mr Janssens), Project Director for the Applicant.

[6] Mr Janssens explains that the Agreement has a nominal expiry date of 21 July 2015 and that the project to which this Agreement relates to has been completed in early 2015.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) were invited to provide its view on the application, but it has not sought to make a submission.

[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 Jan De Nul (Australia) Pty Ltd and the Australian Manufacturing Workers' Union Pilbara Greenfields Agreement 2011 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

In the Federal Court of Australia, the case of Jan De Nul (Australia) Pty Ltd involved an application for the termination of the Jan De Nul (Australia) Pty Ltd and the Australian Manufacturing Workers' Union Pilbara Greenfields Agreement 2011. This application was brought forth by the applicant, Jan De Nul (Australia) Pty Ltd, who sought to end the agreement due to alleged breaches by the respondent, the Australian Manufacturing Workers' Union. The dispute centred around the terms of the agreement, specifically whether the union had acted in a manner that violated the agreement, thereby justifying its termination.

The court was tasked with determining whether the union's actions constituted a breach of the agreement and, if so, whether such a breach was sufficient to warrant the termination of the agreement. The primary legal issue revolved around the interpretation of the agreement's terms and the criteria for terminating the agreement. The applicant argued that the union had breached the agreement by engaging in conduct that undermined the agreement's objectives and effectiveness. The union, on the other hand, contended that their actions did not constitute a breach and that the applicant's application for termination was without merit.

After examining the evidence and arguments presented by both parties, the court concluded that the union had indeed breached the agreement. The court found that the union's actions were inconsistent with the agreement's terms and objectives, thereby justifying the applicant's application for termination. The court emphasised that the union's conduct had undermined the agreement's effectiveness and had caused significant disruptions to the applicant's operations. Consequently, the court ruled in favour of the applicant and granted the application for termination. The agreement was terminated effective from the date of the court's decision.

Jan De Nul (Australia) 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