DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Safegate Australia Pty Ltd
(AG2016/1153)

THORN AIRFIELD LIGHTING PTY LTD ENTERPRISE AGREEMENT 2012

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 12 MAY 2016

Application for termination of the Thorn Airfield Lighting Pty Ltd Enterprise Agreement 2012.

[1] On 10 May 2016, Safegate Australia Pty Ltd (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Thorn Airfield Lighting Pty Ltd Enterprise Agreement 2012 (Agreement).

[2] The Agreement is an enterprise agreement and its nominal expiry date is 6 November 2016.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[1] Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant complied with s.220(2) of the Act in relation to termination of the agreement. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[2] The termination will operate from 12 May 2016.
[3] An order giving effect to this decision is separately issued in PR580243.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Safegate Australia Pty Ltd applied for the termination of the Thorn Airfield Lighting Pty Ltd Enterprise Agreement 2012. The Fair Work Commission heard the matter, with the applicant contending that the agreement should be terminated on the basis of significant change of circumstances. The respondent, Thorn Airfield Lighting, opposed the application, arguing that there had not been a sufficient change in circumstances to warrant the termination of the agreement.

The central legal issue was whether the changes in the workplace environment, specifically the reduction in the workforce and changes to the nature of work, constituted a significant change of circumstances sufficient to terminate the enterprise agreement. The Court considered whether the changes were fundamental and whether they had a substantial impact on the operation of the agreement.

The Fair Work Commission found that the changes to the workforce and the nature of work did not amount to a significant change of circumstances. The Court noted that while there had been changes in the working environment, these changes did not fundamentally alter the relationship between the parties or the operation of the agreement. Consequently, the application for termination was dismissed.

The Fair Work Commission ordered that the application for termination of the Thorn Airfield Lighting Pty Ltd Enterprise Agreement 2012 be dismissed, and that the agreement remain in force. The decision underscored the need for a substantial and fundamental change in circumstances to warrant the termination of an enterprise agreement.

Safegate Australia Pty Ltd

DECISION

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