Jemena Asset Management Pty Ltd

[2014] FWCA 2103

[2014] FWCA 2103

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jemena Asset Management Pty Ltd
(AG2013/11708)

JEMENA LIMITED EMPLOYEES AGREEMENT 2008

Electrical power industry
COMMISSIONER BISSETT	MELBOURNE, 1 APRIL 2014

Application for termination of the Jemena Limited Employees Agreement 2008.

[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 Limited Employees Agreement 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 30 September 2012.

[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;

(c) an employee organisation 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 some interest in the Agreement were advised of the mention. As agreed further discussions were had between the Applicant and the relevant unions. A conference of the parties was held on 26 March 2014.

[6] The Australian Workers’ Union, Australian Municipal, Administrative, Clerical and Services Union, and the Association of Professional Engineers, Scientists and Managers, Australia have each indicated they do 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.

[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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