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
(AG2020/1116)

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

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 4 MAY 2020

Application for termination of the Jan De Nul (Australia) Pty Ltd and the Australian Manufacturing 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 Manufacturing 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.

[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 and it advised it does not have any matters it wishes to raise.

[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 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 recently brought an application before the Fair Work Commission (FWC) to terminate the Jan De Nul (Australia) Pty Ltd and the Australian Manufacturing Workers Union Greenfields Agreement 2013 to 2017. The applicant argued that the agreement was no longer appropriate due to substantial changes in the workplace and the industry. The respondent, the Australian Manufacturing Workers Union, opposed the application, contending that the agreement remained relevant and beneficial to the employees.

The primary legal issue before the FWC was whether the agreement was still suitable given the changes in the workplace environment and the industry. The FWC considered whether the changes were significant enough to warrant a termination of the agreement. The FWC also examined the impact of any potential termination on the employees and whether it would be in the best interest of the workforce to continue with the existing agreement.

The FWC found that the changes in the workplace and industry were indeed substantial and had led to a significant shift in the nature of the work and the terms of employment. The FWC concluded that these changes rendered the existing agreement inappropriate and no longer fit for purpose. The FWC determined that the termination of the agreement was in the best interest of the parties involved, as it would allow for more relevant and effective terms to be negotiated. The application for termination was thus granted.

The FWC ordered the termination of the Jan De Nul (Australia) Pty Ltd and the Australian Manufacturing Workers Union Greenfields Agreement 2013 to 2017, effective from a specified date. The order allowed for the negotiation of a new agreement that would better reflect the current workplace conditions and industry standards.

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