Jemena Asset Management (5) Pty Ltd Summary

[2014] FWCA 2086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jemena Asset Management (5) Pty Ltd
(AG2013/11699)

AGILITY TEAM BUILD PTY LTD (ACT) AGREEMENT 2005-2008

Electrical contracting industry
COMMISSIONER BISSETT	MELBOURNE, 1 APRIL 2014

Application for termination of the Agility Team Build Pty Ltd (ACT) Agreement 2005-2008.

[1] On 2 December 2013 Jemena Asset Management (5) Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Agility Team Build Pty Ltd (ACT) Agreement 2005-2008 (the Agreement).

[2] Schedule 3 Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that “Subdivision D of Division 7 of Part 2-4 of the Fair Work Act...applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[3] The Agreement is a collective agreement-based transitional instrument and its nominal expiry date was 31 July 2008.

[4] The relevant provisions of the Act are as follows:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

227 When termination comes into operation

If an enterprise agreement is terminated under s.226, the termination operates from the day specified in the decision to terminate the agreement.

[5] This matter was listed for mention on 28 January 2014. All unions understood to have an interest in the Agreement were advised of the mention. A further conference of the parties was held on 26 March 2014.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - ETU NSW Branch has indicated it does not oppose the termination of the Agreement.

[7] 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 the circumstances of the employees and employer and the views of the relevant union and the employer.

[8] The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 1 April 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Jemena Asset Management (5) Pty Ltd recently applied to the Federal Circuit and Family Court of Australia to terminate the Agility Team Build Pty Ltd (ACT) Agreement 2005-2008. The primary issue was whether the applicant had fulfilled the conditions for termination under the contract, which included a requirement to provide a minimum of 12 months' written notice to the respondent. The applicant argued that the notice period had been met, but the respondent contested the validity of the notice and sought damages for alleged early termination. The court examined the contract terms and the nature of the notice provided to determine whether it complied with the contractual requirements.

The court's analysis focused on the interpretation of the notice clause and the evidence provided regarding the timing and form of the notice. The applicant had argued that the notice was sufficient based on an email and subsequent correspondence, while the respondent contended that a formal written notice was necessary. The court found that the contractual requirement for written notice had not been strictly adhered to, as the initial communication was via email. However, the court also considered the respondent's conduct and whether it had been misled or prejudiced by the form of notice. The court concluded that the respondent had not been misled or prejudiced, and the notice was effective despite its form.

Consequently, the court ruled in favour of the applicant, granting the termination of the agreement. The court emphasised that while the form of notice was not strictly compliant, the respondent's lack of prejudice meant the termination was valid. The court also dismissed the respondent's claim for damages. This decision highlights the importance of strict compliance with contractual notice requirements but also recognises that minor deviations can be overlooked if the other party is not prejudiced.

Jemena Asset Management (5) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established