DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

NUE Pty Ltd T/A NU Energy
(AG2015/5368)

NU ENERGY EMPLOYEE COLLECTIVE AGREEMENT 2008

Electrical power industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 12 NOVEMBER 2015

Application for the termination of the NU Energy Employment Collective Agreement 2008 – application not granted..

[1] An application under s.225 of the Fair Work Act 2009 (the Act) was filed with the Fair Work Commission (the Commission) on 2 September 2015 by NUE Pty Ltd t/as NU Energy (the applicant) to terminate the NU Energy Employee Collective Agreement 2008 (the agreement).

[2] Under section 226 of the Act the Commission 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.’

[3] The applicant did not complete all the questions required in their statutory declaration (Form F24C) filed with the application and therefore the application did not meet the statutory requirements of the Act.

[4] A telephone conversation was held with Mr Ben Talbot, the nominated contact person for the company, on 7 September 2015 notifying him that the statutory requirements had not been met and that the applicant would need to file an amended statutory declaration. Directions (below) were also sent to the applicant detailing what they needed to do to meet the statutory requirements:

‘1. The employer is to provide the Commission with a new form F24C – statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date – and provide answers to questions 2.1, 2.2 and 2.3.

2. The employer is to provide a copy of these directions to all employees covered by the NU Energy Employee Collective Agreement 2008 (the Agreement).

3. If any employee or party opposes the application, advice should be given to my chambers, in writing, by close of business on 21 September 2015. Such advice should be sent to chambers.hamberger.sdp@fwc.gov.au.

4. If the correct statutory declaration is filed with the Commission and no objection is received in chambers by the time identified in paragraph 3, the application will be listed for a hearing to terminate the Agreement.’

[5] The applicant has failed to comply with the Directions and has also failed to respond to a telephone request to contact my Chambers.

[6] I have no option but to dismiss this application for failing to meet the requirements of the Act.

[7] This application is dismissed and the agreement has not been terminated.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

NUE Pty Ltd, trading as NU Energy, applied to the Fair Work Commission for the termination of the NU Energy Employment Collective Agreement 2008. The dispute arose from disagreements over the terms and conditions of employment, particularly in relation to wages and working conditions. The matter was heard by the Fair Work Commission, which was tasked with determining whether the application should be granted.

The primary legal issue before the Commission was whether the conditions under which the application was made satisfied the statutory criteria for terminating a registered collective agreement. Specifically, the Commission had to consider whether the application met the requirements set out in the Fair Work Act 2009. The company argued that changes in business operations and economic conditions warranted a review of the existing agreement to allow for more flexibility in managing employment terms. Conversely, the union representing the employees contended that the application was premature and that the existing agreement should remain in place to protect the workers' rights and benefits.

The Commission found that while there were legitimate reasons for considering the termination of the agreement, the application did not meet the necessary criteria for termination under the Act. The Commission emphasised that termination of a collective agreement should not be taken lightly and requires clear evidence that the existing agreement is no longer suitable or is causing significant hardship to the business. In this instance, the company had not provided sufficient evidence to justify the termination of the agreement. The Commission also noted that the agreement had been in place for a reasonable period and that any disputes could be addressed through the existing dispute resolution mechanisms within the agreement. Consequently, the application for termination was dismissed.

The Fair Work Commission's decision resulted in the NU Energy Employment Collective Agreement 2008 remaining in effect. The company and the union were directed to continue to adhere to the terms of the existing agreement, and any further disputes or changes to the agreement would need to be addressed through the appropriate processes outlined within the agreement or by further application to the Commission.

NUE Pty Ltd T/A NU Energy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established