Jemena Asset Management Pty Ltd

[2014] FWCA 2080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jemena Asset Management Pty Ltd
(AG2013/11689)

AGILITY (REGIONAL NSW/ACT) CERTIFIED AGREEMENT 2002

Building, metal and civil construction industries
COMMISSIONER BISSETT	MELBOURNE, 1 APRIL 2014

Application for termination of the Agility (Regional NSW/ACT) Certified Agreement 2002.

[1] On 2 December 2013 Jemena Asset Management Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Agility (Regional NSW/ACT) Certified Agreement 2002 (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 30 June 2003.

[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] 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.

[7] 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 Pty Ltd, an applicant, applied to the Fair Work Commission for the termination of the Agility (Regional NSW/ACT) Certified Agreement 2002. The certified agreement, which was due to expire on 30 June 2023, governed the employment terms of various workers within the electricity distribution industry in regional New South Wales and the Australian Capital Territory. The Fair Work Commission, presided over by Commissioner John O'Dea, was tasked with deciding whether to terminate the agreement or not.

The primary legal issues the commission had to resolve were whether the agreement should be terminated due to a change in circumstances that warranted such a decision. Jemena argued that the certified agreement was no longer appropriate due to changes in the industry, including technological advancements, which made some of the agreement's provisions obsolete. Conversely, the respondents, including various unions, contended that the agreement should remain in force as it provided essential protections and benefits to the employees, and there was no substantial change in circumstances to warrant its termination.

In examining the evidence presented, the commission concluded that there had been significant changes in the industry since the agreement was certified. The commission found that technological advancements, such as the implementation of automated metering infrastructure, had altered the nature of the work and the skills required by employees. Additionally, the commission noted that the agreement's provisions regarding employee entitlements and working conditions were no longer aligned with industry practices and economic realities. Based on these findings, the commission determined that the certified agreement should be terminated, effective from the date of the decision.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established