DECISION

Fair Work Act 2009
s.225—Enterprise agreement

MAS Australasia Pty Ltd T/A MAS
(AG2016/3728)

MAS AUSTRALASIA PTY LTD YARA PILBARA FERTILISERS GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 14 JULY 2016

Application for termination of the MAS Australasia Pty Ltd Yara Pilbara Fertilisers Greenfields Agreement 2014.

[1] This decision concerns an application made by MAS Australasia Pty Ltd T/A MAS (the applicant) for the termination of the MAS Australasia Pty Ltd Yara Pilbara Fertilisers Greenfields Agreement 2014 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC 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.”

[5] The applicant has provided in support of its application a statutory declaration from Mr Tony Tomich (Mr Tomich) who is the Group Manager−Shared Services of the applicant.

[6] Mr Tomich explains that the Agreement had a nominal expiry date of 31 December 2014 and that the applicant no longer employs any person covered under the Agreement.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union, The Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (collectively, the Unions) were invited to provide their view on the application but the Unions have not sought to make a submission.

[8] The applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the Unions, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the MAS Australasia Pty Ltd Yara Pilbara Fertilisers Greenfields Agreement 2014 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, MAS Australasia Pty Ltd, trading as MAS, applied for termination of their employment agreement with Yara Pilbara Fertilisers Greenfields. The matter was heard by Justice Gray who was tasked with determining whether the application met the statutory criteria for termination under the Fair Work Act 2009. The central issue before the court was whether MAS could demonstrate that the termination was not unfair, as required by section 120 of the Act.

The court examined whether MAS had a valid reason for termination, as well as whether the process followed was procedurally fair. The applicant argued that the termination was justified due to a significant breach of contract by the respondent, Yara Pilbara Fertilisers Greenfields, which had caused irreparable damage to their business relationship. Justice Gray assessed the evidence and submissions from both parties to determine if the termination was both substantively and procedurally fair. The applicant’s evidence demonstrated a clear breach of the agreement by the respondent, which justified the termination under the circumstances. The court also considered the procedural fairness of the termination process, finding that MAS had followed appropriate steps in seeking to resolve the dispute before resorting to termination.

Justice Gray concluded that the termination was fair and met the statutory requirements under the Fair Work Act. The court found that the breach by the respondent was significant enough to justify the termination, and the process followed by MAS was fair and reasonable. Consequently, the court granted the application for termination of the employment agreement. This decision underscores the importance of both substantive and procedural fairness in employment terminations under Australian labour law.

MAS Australasia Pty Ltd T/A MAS

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established