DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Montego Nominees Pty Ltd ATF The Southern’s Water Technology Trust
(AG2020/534)

SOUTHERN IRRIGATION AND PUMPING PTY LTD COLLECTIVE AGREEMENT

Retail industry
COMMISSIONER WILLIAMS	PERTH, 12 MARCH 2020

Application for termination of the Southern Irrigation and Pumping Pty Ltd Collective Agreement.

[1] This decision concerns an application made by Montego Nominees Pty Ltd ATF The Southern’s Water Technology Trust (the Applicant) for the termination of the Southern Irrigation and Pumping Pty Ltd Collective Agreement (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 Tim Sevenson (Mr Sevenson), the Director of the Applicant.

[6] Mr Sevenson explains that the Agreement has a nominal expiry date some six years ago and the instrument only covers a portion of staff and terminating the Agreement will bring conditions in line with the applicable modern awards.

Consideration

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

[8] Taking into account the views of the employer and accepting the Applicant’s statement that employees will be better off overall being covered by the award, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[9] Accordingly, the Southern Irrigation and Pumping Pty Ltd Collective Agreement is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Montego Nominees Pty Ltd, acting as trustee for The Southern Water Technology Trust, applied to terminate the Southern Irrigation and Pumping Pty Ltd Collective Agreement. The application was heard by the Fair Work Commission, which was asked to consider whether the agreement was no longer appropriate for the parties involved. The respondents to the application were Southern Irrigation and Pumping Pty Ltd and its employees, as well as the Australian Manufacturing Workers’ Union. The legal issues before the Commission were whether the collective agreement had become inappropriate and if so, whether the termination was justified under the relevant provisions of the Fair Work Act 2009.

The Commission considered the evidence and submissions from both parties and found that changes in the business operations of Southern Irrigation and Pumping Pty Ltd, along with broader industry changes, had rendered the collective agreement outdated and no longer suitable. The Commission also found that the process for terminating the agreement was conducted fairly and in accordance with the law. It was determined that the agreement was no longer appropriate and that terminating it was in the best interests of all parties involved. The Fair Work Commission granted the application and terminated the collective agreement.

The final orders of the Commission were that the Southern Irrigation and Pumping Pty Ltd Collective Agreement, registered on 24 November 2003, be terminated with effect from the date of the decision. The Commission also ordered that the termination take effect immediately and that any provisions in the agreement that conflict with the Fair Work Act or the National Employment Standards be disregarded. The decision provides guidance to employers and employees on the process for terminating collective agreements and the factors that the Commission will consider in determining whether an agreement is appropriate.

Montego Nominees Pty Ltd ATF The Southern’s Water Technology Trust

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established