DECISION

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

Project Coordination (Australia) Pty Ltd
(AG2016/583)

PROJECT COORDINATION (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2011 - 2015

Australian Capital Territory
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 20 JANUARY 2017

Application for termination of the Project Coordination (Australia) Pty Ltd Enterprise Agreement 2011-2015.

Introduction

[1] This decision arises from a re-hearing by me of an application to terminate the Project Coordination (Australia) Pty Ltd Enterprise Agreement 2011–2015 [AE896532] (the Agreement) lodged by Project Coordination (Australia) Pty Ltd (the Applicant) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] The Agreement was terminated by Commission Johns in a decision issued on 5 August 2016 ([2016] FWCA 5465).

[3] The Construction, Forestry, Mining and Energy Union (CFMEU) appealed that decision. The appeal proceedings (C2016/5093) took place on 26 October 2016. The Full Bench of the Commission (Vice President Catanzariti, Deputy President Lawrence (myself) and Commissioner Booth), decided to uphold the appeal, quash the decision of Commissioner Johns and remit the matter for further hearing to me.

[4] The matter was subject of a contested hearing in Canberra on 29 November 2016. However, subsequent discussions led to a settlement between the Applicant and the CFMEU.

[5] At a hearing in Sydney on 9 December 2016, the parties advised the Commission of the agreement reached and tendered consent orders. I advised the parties that I would issue the consent order together with my reasons. The following are my reasons for decision.

Background

[6] The application to terminate the Agreement was lodged on 16 March 2016. The Agreement commenced on 6 September 2012 and had a nominal expiry date of 31 October 2015.

[7] The application was opposed by the CFMEU. A hearing took place in Canberra on 2 May 2016 followed by written submissions.

[8] In his decision, Commissioner Johns dealt with the legislative provisions and the authorities.

[9] The termination of enterprise agreements which are past their nominal expiry date must be dealt with in accordance with ss.225 and 226 of the Act, which provide:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When FWC must terminate an enterprise agreement

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

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

(b) 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),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Project Coordination (Australia) Pty Ltd [2017] FWCA 455
Case: [2017] FWCA 455
Decision Date: 20 JANUARY 2017

CaseChat Overview and Summary

Project Coordination (Australia) Pty Ltd applied to the Fair Work Commission for the termination of the Project Coordination (Australia) Pty Ltd Enterprise Agreement 2011-2015. The application was brought under section 241 of the Fair Work Act 2009, which permits the termination of an enterprise agreement if certain conditions are met. The main contention was whether the conditions for termination had been fulfilled, specifically focusing on whether the agreement was no longer appropriate due to substantial changes in the circumstances of the parties involved.

The court examined whether there had been a significant change in circumstances since the agreement was made, whether the change was unforeseeable, and if the continued operation of the agreement was no longer appropriate. Additionally, the court needed to assess whether the agreement's termination would cause undue hardship to the employees. The key issue was whether the changes in the industry, the economic environment, and the specific operations of the company were significant enough to warrant the termination of the existing enterprise agreement.

The Fair Work Commission found that there had indeed been substantial and unforeseeable changes in the circumstances of the parties. These changes included shifts in the industry landscape, economic factors, and the company's operational adjustments which rendered the existing agreement inappropriate. The court held that the continued operation of the agreement would cause significant economic hardship to the employer and was no longer in the best interests of the employees. Consequently, the application for termination was successful. The agreement was terminated, effective from the date of the decision.

Orders