Jemena NPSWA Pty Ltd

[2014] FWCA 2085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jemena NPSWA Pty Ltd
(AG2013/11697)

NATIONAL POWER SERVICES (WA) / CEPU/ASU AGREEMENT 2004

Oil and gas industry
COMMISSIONER BISSETT	MELBOURNE, 1 APRIL 2014

Application for termination of the National Power Services (WA) /CEPU/ASU Agreement 2004.

[1] On 2 December 2013 Jemena NPSWA Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the National Power Services (WA) /CEPU/ASU Agreement 2004 (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 31 December 2005.

[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 and the views of the relevant unions 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

In the matter of Jemena NPSWA Pty Ltd, the applicant sought to terminate the National Power Services (WA) /CEPU/ASU Agreement 2004. The dispute arose between the applicant, an energy provider, and the respondents, comprising the Construction, Forestry, Maritime, Mining and Energy Union (CEPU) and the Australian Services Union (ASU). The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the applicant had valid grounds to terminate the agreement. The applicant argued that the respondents had breached the agreement by engaging in protected industrial action that was not in accordance with the Fair Work Act 2009. The respondents contended that the industrial action was lawful and did not constitute a breach of the agreement.

The court found that the respondents had engaged in protected industrial action, but the action was not in accordance with the Fair Work Act 2009. The court held that the respondents' actions were protected by the act, but they were not authorised by the act, as the respondents did not provide the required 24-hour notice of the action. The court further found that the respondents' actions constituted a breach of the agreement. As a result, the court granted the applicant's application for termination of the agreement.

The court ordered that the agreement be terminated as of a specified date, and that the respondents pay the applicant's costs of the application. The court emphasised that the termination of the agreement was not a reflection on the merits of the respondents' industrial action, but rather a consequence of the failure to comply with the requirements of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established