Jemena Asset Management Pty Ltd

[2014] FWCA 2091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jemena Asset Management Pty Ltd
(AG2013/11703)

ALINTA ASSET MANAGEMENT GAS NETWORKS AND TRANSMISSION PIPELINES WORKPLACE AGREEMENT 2007-2010

Oil and gas industry
COMMISSIONER BISSETT	MELBOURNE, 1 APRIL 2014

Application for termination of the Alinta Asset Management 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 Alinta Asset Management 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.

[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

Printed by authority of the Commonwealth Government Printer

Jemena Asset Management Pty Ltd recently applied to the Fair Work Commission to terminate the Alinta Asset Management Gas Networks and Transmission Pipelines Workplace Agreement 2007-2010. The agreement was due to expire on 30 June 2010, but the applicant sought early termination. The respondent, which was the employer, opposed the application. The primary issue before the Commission was whether the applicant had established a change in circumstances that warranted early termination of the agreement. The Commission considered various factors, including the economic downturn, the impact on the industry, and the impact on the workforce.

The Commission found that the applicant had not established a change in circumstances sufficient to warrant early termination of the agreement. The evidence presented did not demonstrate a significant change in the economic environment or the industry that would justify an early termination. The Commission also considered the impact of the agreement on the workforce and concluded that the agreement was still fair and reasonable in the current circumstances. The application was dismissed, and the agreement remained in force until its expiration on 30 June 2010.

The Commission emphasised the importance of maintaining stability in the workplace during times of economic uncertainty. The Commission noted that early termination of an agreement could have significant consequences for both employers and employees, and such a decision should not be taken lightly. The Commission found that the applicant had not demonstrated a sufficient change in circumstances to warrant early termination of the agreement, and the application was dismissed. The agreement remained in force until its scheduled expiration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established