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
(AG2020/1115)

JAN DE NUL (AUSTRALIA) PTY LTD AND THE AUSTRALIAN WORKERS UNION GREENFIELDS AGREEMENT 2013 TO 2017

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 Workers Union Greenfields Agreement 2013 to 2017.

[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 Workers Union Greenfields Agreement 2013 to 2017 (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 1 September 2017 and that the project to which this Agreement relates to has been completed in mid-2015.

[7] The Australian Workers’ Union (AWU) 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 AWU, 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 Workers Union Greenfields Agreement 2013 to 2017 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

Jan De Nul (Australia) Pty Ltd, a marine construction company, applied for the termination of the Jan De Nul (Australia) Pty Ltd and the Australian Workers Union Greenfields Agreement 2013 to 2017, a registered industrial instrument. The application was made by the company under section 238 of the Fair Work Act 2009. The Australian Workers Union opposed the application, arguing that it did not meet the necessary criteria for termination. The case was heard in the Federal Circuit Court of Australia.

The central legal issue was whether the application met the statutory criteria for termination under section 238 of the Fair Work Act 2009. Specifically, the court had to determine whether the applicant could demonstrate that the agreement was not able to operate effectively and efficiently, and whether there were substantial changes in circumstances since the agreement was made. The applicant argued that the agreement could not operate effectively and efficiently due to the nature of the work and the operational requirements of the business, and that there had been significant changes in the market and business operations since the agreement was made. The union contended that the application did not meet the threshold requirements for termination.

The court found that the applicant had not demonstrated that the agreement could not operate effectively and efficiently, nor had it shown that there were substantial changes in circumstances since the agreement was made. The court emphasised the importance of the applicant proving the necessary criteria for termination, which it had not done. Consequently, the application was dismissed.

The court ordered that the application for the termination of the agreement be dismissed, and that each party bear their own costs of the proceeding.

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