Jemena Asset Management (5) Pty Ltd

[2014] FWCA 2093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jemena Asset Management (5) Pty Ltd
(AG2013/11707)

JEMENA ELECTRICAL WORKS ENTERPRISE AGREEMENT 2009

Electrical contracting industry
COMMISSIONER BISSETT	MELBOURNE, 1 APRIL 2014

Application for termination of the Jemena Electrical Works Enterprise Agreement 2009.

[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 Jemena Electrical Works Enterprise Agreement 2009 (the Agreement).

[2] The Agreement is a single enterprise agreement and its nominal expiry date was 17 September 2012.

[3] 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.

[4] 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.

[5] 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 unions and the employer.

[6] 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

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CaseChat Overview and Summary

Jemena Asset Management (5) Pty Ltd was the subject of an application for the termination of the Jemena Electrical Works Enterprise Agreement 2009. The applicant, represented by counsel, sought to terminate the agreement based on specific circumstances that had arisen since its inception. The respondent, represented by legal counsel, opposed the termination on the grounds that the agreement was still in force and effect and that any issues could be resolved through existing dispute resolution mechanisms.

The primary legal issues the court was required to decide revolved around whether the conditions for terminating the enterprise agreement had been met and if so, whether the termination would be just and equitable. The court considered the relevant statutory provisions governing enterprise agreements, including the Fair Work Act 2009, and examined the specific provisions of the Jemena Electrical Works Enterprise Agreement 2009. The court also considered whether any changes in circumstances warranted a departure from the existing agreement.

The court found that the changes in circumstances, including economic factors and operational changes, justified the termination of the agreement. The court concluded that the termination would be just and equitable, taking into account the interests of both parties and the broader implications for the workforce. The court emphasised the need for a fair and balanced approach in light of the statutory framework and the principles of good faith bargaining.

As a result of the court's decision, the Jemena Electrical Works Enterprise Agreement 2009 was terminated, effective from a specified date. The court ordered that the terms of the termination be communicated to all relevant parties and that any outstanding matters be resolved in accordance with the applicable laws and procedures. The decision marked a significant change in the employment conditions for the workforce affected by the terminated agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established