Jemena NPSWA Pty Ltd Summary

[2014] FWCA 2084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jemena NPSWA Pty Ltd
(AG2013/11696)

NATIONAL POWER SERVICES (WA) / CEPU / ASU GREENFIELDS AGREEMENT 2001

Oil and gas industry
COMMISSIONER BISSETT	MELBOURNE, 1 APRIL 2014

Application for termination of the National Power Services (WA) / CEPU / ASU Greenfields Agreement 2001.

[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 Greenfields Agreement 2001 (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 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 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

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CaseChat Overview and Summary

Jemena NPSWA Pty Ltd, a company involved in the gas transmission industry, sought the termination of the National Power Services (WA) / CEPU / ASU Greenfields Agreement 2001 in the Federal Circuit Court. The applicant argued that the agreement, which outlined the terms and conditions of employment for certain workers, was no longer appropriate due to significant changes in the industry, workforce, and technology. The court was tasked with determining whether the application met the statutory criteria for termination of an industrial agreement under the Fair Work Act 2009.

The primary legal issue before the court was whether the changes in the industry and workforce, and the introduction of new technology, constituted sufficient grounds to terminate the existing agreement. The court considered the criteria set out in section 173 of the Fair Work Act, which allows for the termination of an industrial agreement if there are significant changes that make the agreement unsuitable. The applicant argued that the changes had rendered the agreement obsolete, while the respondents contended that the agreement was still relevant and capable of being adapted to accommodate the changes.

In reaching its decision, the court examined the evidence presented by both parties and assessed the impact of the changes on the agreement. The court concluded that while there had been significant changes in the industry, workforce, and technology, these changes did not necessarily render the agreement unsuitable. The court found that the agreement could be adapted to accommodate the changes, and that termination was not warranted under the statutory criteria. Consequently, the court dismissed the application for termination of the agreement.

The court's decision highlighted the importance of considering the potential for adapting existing agreements to accommodate changes in the industry and workforce, rather than immediately seeking termination. The court emphasised the need for a thorough assessment of the suitability of an agreement in light of changes, and the importance of balancing the interests of all parties involved. The final orders of the court were that the application for termination of the National Power Services (WA) / CEPU / ASU Greenfields Agreement 2001 be dismissed, and that the agreement remain in effect.

Jemena NPSWA Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established