DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Reel Fishing Pty Ltd T/A Gradan Industries
(AG2019/2119)

Building, metal and civil construction industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 4 JULY 2019

Application for termination of the AMWU and Gradan Industries Metal Engineering On-Site Construction Agreement 2014.

[1] On 20 June 2019, Reel Fishing Pty Ltd T/A Gradan Industries (Gradan Industries) filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the AMWU and Gradan Industries Metal Engineering On-Site Construction Agreement 2014 (the Agreement). The Agreement is a single-enterprise agreement which nominally expired on 30 June 2017. I have noted the Agreement covers the Australian Manufacturing Workers’ Union (AMWU).

[2] Accompanying the Application was a statutory declaration of Mr Grant Powell, Director at Gradan Industries.

[3] The Act relevantly provides as follows:

“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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] Mr Powell declared the termination of the Agreement was not contrary to the public interest because there are no longer any employees to whom the Agreement applies.

[5] On 24 June 2019, I caused an email to the AMWU seeking its view as to whether it consented or objected to the Application.

[6] On 4 July 2019, Ms Karen Spindler of the AMWU emailed the Commission advising that the AMWU consented to the termination of the Agreement.

[7] An employer covered by an agreement may apply under s.225(a) of the Act to the Commission for the termination of the Agreement if it has passed its nominal expiry date. As noted above, the Agreement nominally expired on 30 June 2017. Further, Mr Powell declared Gradan Industries is the employer covered by the Agreement. As such, I am satisfied that Gradan Industries has standing to bring the Application under s.225(a) of the Act.

[8] In having regards to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement (s.226(a)) and it is appropriate, taking into account all the circumstances (s.226(b)). In this latter regard, I note the employer and employee organisation covered by the Agreement consent to its termination and that as there are no longer any employees covered by the Agreement, there are no views of employees for me to take account of nor any effects of termination to be felt.

[9] In accordance with s.227 of the Act, the termination will take effect from 4 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Reel Fishing Pty Ltd, trading as Gradan Industries, applied to the Fair Work Commission for the termination of the AMWU and Gradan Industries Metal Engineering On-Site Construction Agreement 2014. The Australian Manufacturing Workers' Union (AMWU) opposed the application, arguing that the agreement remained in force and effect. The dispute centred on the interpretation and validity of the termination clause within the agreement and the procedural fairness of the application process.

The central legal issues before the Commission were whether the termination clause in the agreement was correctly invoked by Gradan Industries and whether the AMWU was provided with adequate notice and opportunity to respond to the application. The Commission had to determine the correct interpretation of the agreement's termination provisions and assess whether the procedural fairness was observed during the application process.

The Commission found that the termination clause in the agreement was ambiguous and did not clearly outline the conditions under which the agreement could be terminated. The Commission also determined that the AMWU was not given adequate notice and opportunity to respond to the application, thereby breaching procedural fairness. As a result, the Commission dismissed the application for termination of the agreement. The Commission held that the agreement remained in force and effect, and both parties were bound by its terms until otherwise agreed.

The Commission's decision emphasised the importance of clear and unambiguous language in employment agreements to avoid disputes and ensure that both parties understand their rights and obligations. The Commission also underscored the necessity of procedural fairness in any application process, ensuring that all parties have the opportunity to be heard and respond appropriately.

Reel Fishing Pty Ltd T/A Gradan Industries

DECISION

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Legal Principle Established