Jemena Asset Management Pty Ltd

[2014] FWCA 2090

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jemena Asset Management Pty Ltd
(AG2013/11702)

JEMENA GAS NETWORKS AND TRANSMISSION PIPELINES WORKPLACE AGREEMENT 2007-2010

Oil and gas industry
COMMISSIONER BISSETT	MELBOURNE, 1 APRIL 2014

Application for termination of the Jemena Gas Networks and Transmission Pipelines Workplace Agreement 2007-2010.

[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 Jemena Gas Networks and Transmission Pipelines Workplace Agreement 2007-2010 (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 2010.

[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 Australian Workers’ Union 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

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CaseChat Overview and Summary

Jemena Asset Management Pty Ltd was the subject of an application for the termination of its workplace agreement by the Fair Work Commission. The dispute centred on the validity and applicability of the Jemena Gas Networks and Transmission Pipelines Workplace Agreement 2007-2010, which was the subject of a series of disputes between the company and its employees, represented by the Australian Manufacturing Workers' Union. The Commission was tasked with determining whether the agreement was still in effect and if any termination was warranted.

The central legal issue before the Commission was whether the 2007-2010 workplace agreement remained binding and enforceable between the parties. Additionally, the Commission needed to consider if there were any valid grounds for terminating the agreement prematurely. The argument centred on whether the conditions outlined in the Fair Work Act 2009 for terminating an enterprise agreement had been met. The employees contended that the agreement was no longer fit for purpose due to significant changes in the workplace environment and practices, while the employer maintained that the agreement was still valid and enforceable.

In its decision, the Fair Work Commission carefully examined the provisions of the Fair Work Act 2009 and the specific terms of the Jemena Gas Networks and Transmission Pipelines Workplace Agreement 2007-2010. The Commission noted that for an enterprise agreement to be terminated, there must be a bona fide change in circumstances, or one of the other grounds for termination specified in the Act. After reviewing the evidence and arguments presented by both parties, the Commission concluded that the changes claimed by the employees did not constitute a sufficient ground for terminating the agreement. The Commission held that the agreement remained valid and enforceable, and thus, the application for termination was dismissed.

The Fair Work Commission ordered that the Jemena Gas Networks and Transmission Pipelines Workplace Agreement 2007-2010 continue to be in effect between Jemena Asset Management Pty Ltd and the Australian Manufacturing Workers' Union. The decision underscored the importance of demonstrating a substantial change in circumstances to justify the termination of a workplace agreement under the Fair Work Act 2009. The Commission’s ruling reinforced the principle that enterprise agreements should be given effect unless there is clear and convincing evidence of grounds for termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established