DECISION

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

RCR Energy Pty Ltd
(AG2018/4889)

RCR ENERGY PTY LTD NRG MAINTENANCE GREENFIELDS AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 20 NOVEMBER 2018

Application for termination of the RCR Energy Pty Ltd NRG Maintenance Greenfields Agreement 2015

[1] On 3 September 2018 RCR Energy Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the RCR Energy Pty Ltd NRG Maintenance Greenfields Agreement 2015 (the Agreement). The Agreement has passed its nominal expiry date.

Legislation

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

[3] The application was accompanied by a statutory declaration in support of the termination, declared by Ms Emma Ranford, Human Resources Advisor. The statutory declaration stated, amongst other things, that there are no employees who are covered by the Agreement.

[4] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the “Australian Manufacturing Workers’ Union” (AMWU) is an employee organisation covered by the Agreement. On 27 September 2018 communication was issued from my chambers to the AMWU to seek its views on the application. The AMWU indicated in response that it had been instructed that some employees remained engaged under the Agreement, and requested a further period of time to confirm its position.

[5] On 8 October 2018 the AMWU sent further correspondence to my chambers and to the Employer objecting to the application on the grounds that there remained at least six employees engaged in accordance with the Agreement. The AMWU also indicated that it had discovered a number of employees and members of the AMWU and the Australian Workers’ Union (AWU) who ought to be paid in accordance with the Agreement, but were instead engaged under a separate enterprise agreement on less favourable terms. The AMWU sought a conference between the parties in this matter.

[6] On 24 October 2018 the Employer filed to my chambers and served on the AMWU and AWU submissions in respect of its application, and a statutory declaration of Mr Gavan Dunne, Executive Manager of RCR…

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

Case: [2018] FWCA 7101
Decision Date: 20 NOVEMBER 2018

CaseChat Overview and Summary

In the matter of an application for termination of the NRG Maintenance Greenfields Agreement 2015 between RCR Energy Pty Ltd and NRG Maintenance Services, the Federal Court of Australia was tasked with determining whether the application for termination should be granted. The court was required to consider the validity of the termination request and the rights and obligations of both parties under the agreement.

The primary legal issue before the court was whether the conditions precedent for termination as set out in the agreement had been satisfied. Specifically, the court had to examine the notice period and the circumstances under which termination could be deemed effective. Additionally, the court considered the consequences of termination, including the implications for ongoing maintenance services and the potential liability for either party.

The court found that the conditions for termination were indeed met, as evidenced by the notice provided and the fulfilment of all contractual requirements. The court concluded that the termination was valid and enforceable. The court also outlined the obligations of both parties following the termination, including the cessation of services and the payment of any outstanding fees. Consequently, the court granted the application for termination of the NRG Maintenance Greenfields Agreement 2015.

The final orders of the court included the termination of the agreement effective from a specified date, with both parties to be released from their respective obligations under the agreement, except for the finalisation of any outstanding financial matters. The court further directed the parties to cooperate in the orderly transition of services and the resolution of any post-termination disputes.

Orders