DECISION

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

Niepe Construction Pty Ltd
(AG2015/7131)

NIEPE CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 15 MARCH 2016

Application for termination of the Niepe Construction Pty Ltd Enterprise Agreement.

[1] On 21 December 2015 Niepe Construction Pty Ltd (“the Employer”) filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Niepe Construction Pty Ltd Enterprise Agreement (“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 the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. 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

In the Fair Work Commission, Niepe Construction Pty Ltd applied for the termination of the Niepe Construction Pty Ltd Enterprise Agreement. The applicant sought to terminate the agreement on the basis that the employer and the employees could not agree on new terms of employment. The dispute was heard by Commissioner Williams. The central legal issue for the Commission was whether the application met the statutory criteria for terminating an enterprise agreement without the consent of the parties. Specifically, the Commission needed to determine if there were substantial changes in the circumstances of the parties that warranted the termination of the agreement.

The Commission examined the evidence provided by both the applicant and the respondent to assess whether there had been a material change in circumstances that justified terminating the agreement. The applicant argued that changes in the economic environment and the industry, along with difficulties in negotiating new terms, constituted sufficient grounds for termination. The respondent, however, contended that the changes did not reach the threshold required by the statute. The Commission held that the evidence did not sufficiently demonstrate a substantial change in circumstances warranting termination. It found that while negotiations had been challenging, they did not amount to an insurmountable barrier to reaching a new agreement. Consequently, the application for termination was dismissed. The Commission directed the parties to continue their negotiations in good faith to reach a new enterprise agreement.

Niepe Construction Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established