DECISION

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

RCR Haden Pty Ltd
(AG2017/471)

HADEN ENGINEERING MECHANICAL SERVICE ENTERPRISE AGREEMENT (WHYALLA) 2011-2014

(ODN AG2012/359) [AE891742]

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 22 FEBRUARY 2017

Application for termination of the Haden Engineering Mechanical Service Enterprise Agreement (Whyalla) 2011-2014.

[1] RCR Haden Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Haden Engineering Mechanical Service Enterprise Agreement (Whyalla) 2011-2014 (Agreement). The Agreement is expressed to cover the Applicant and its employees engaged to work within South Australia (Whyalla Branch) who perform mechanical service work in accordance with the classifications provided for in clause 3 of the Agreement. The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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 the 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;

[3] Section 226 of the Act provides:

“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.”

[4] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[5] The termination will operate from 22 February 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application was brought by RCR Haden Pty Ltd, seeking the termination of the Haden Engineering Mechanical Service Enterprise Agreement (Whyalla) 2011-2014. The parties involved in the dispute were RCR Haden Pty Ltd, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the representative of the employees. The nature of the dispute was centred on whether the agreement should be terminated due to significant changes in the business circumstances of the employer, which rendered the agreement redundant and no longer fit for purpose.

The court was tasked with determining whether the substantial changes in the business operations of RCR Haden Pty Ltd warranted the termination of the enterprise agreement. This involved assessing the extent of the changes and whether they rendered the agreement obsolete, as well as considering the impact of such termination on the employees and the broader implications for industrial relations. The court had to balance the rights and obligations of both the employer and the employees under the Fair Work Act 2009.

In delivering the judgment, the court found that the changes in the business operations of RCR Haden Pty Ltd were indeed significant enough to render the enterprise agreement redundant. The court held that the agreement could not reasonably accommodate the new business circumstances, and therefore, it was appropriate to terminate the agreement. The court also considered the impact on the employees but concluded that the termination was necessary in the interests of fairness and practicality. The application for termination was thus granted.

RCR Haden 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