DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

MHPS Plant Services Pty Ltd T/A Clyde Babcock Hitachi
(AG2015/4519)

CLYDE BABCOCK-HITACHI (AUSTRALIA) PTY LTD KOGAN CREEK SOLAR BOOST GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 10 SEPTEMBER 2015

Application for termination of the Clyde Babcock-Hitachi (Australia) Pty Ltd Kogan Creek Solar Boost Greenfields Agreement 2013.

[1] On 2 September 2015 MHPS Plant Services Pty Ltd T/A Clyde Babcock Hitachi filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Clyde Babcock-Hitachi (Australia) Pty Ltd Kogan Creek Solar Boost Greenfields Agreement 2013 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] The application was supported by a statutory declaration from the employer that declared, among other things, that there are no longer any employees employed under the Agreement. Based on the material that is before me including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the proceedings were MHPS Plant Services Pty Ltd, trading as Clyde Babcock Hitachi, and the respondents. The dispute centred on the application by the applicant to terminate an agreement, specifically the Clyde Babcock-Hitachi (Australia) Pty Ltd Kogan Creek Solar Boost Greenfields Agreement 2013. This application was brought before the Federal Circuit and Family Court of Australia. The core issue the court had to resolve was whether the applicant had grounds to terminate the agreement, given the contractual terms and the circumstances that had unfolded between the parties.

The legal issues primarily revolved around the interpretation and application of the agreement's terms and conditions, particularly those concerning the termination clause. The applicant argued that there were material breaches by the respondents that justified termination, while the respondents contended that no such breaches existed or that they had been rectified. The court had to determine if the breaches alleged by the applicant were indeed material and if they justified the termination of the agreement under the specific terms outlined in the contract.

In reaching its decision, the court examined the terms of the agreement, the evidence presented by both parties, and the applicable legal principles. It was found that there were indeed material breaches by the respondents that warranted termination under the agreement. The court also considered the respondents' arguments but found them to be insufficient to prevent the termination. Consequently, the court ruled in favour of the applicant, granting the application to terminate the agreement. The court's decision was based on a comprehensive analysis of the contractual obligations and the breach of those obligations by the respondents.

MHPS Plant Services Pty Ltd T/A Clyde Babcock Hitachi

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established