DECISION

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

Skilled Group Limited
(AG2015/7022)

SKILLED TELECOMMUNICATIONS LABOUR HIRE AGREEMENT 2010 - PROJECT SPECIFIC

Telecommunications services
COMMISSIONER SIMPSON	BRISBANE, 17 FEBRUARY 2016

Application for termination of the Skilled Telecommunications Labour Hire Agreement 2010 - Project Specific.

[1] On 15 December 2015 Skilled Group Limited (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.225 of the Fair Work Act 2009 (the Act) for termination of the Skilled Telecommunications Labour Hire Agreement 2010 - Project Specific (the Agreement) after its nominal expiry date.

[2] The Agreement was originally approved by a decision of Fair Work Australia (as the Commission was then known) [2011] FWAA 625 on 31 January 2011 and its nominal expiry date was 12 September 2014.

[3] The Act outlines the steps to be taken in terminating an enterprise agreement after its nominal expiry date 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;

(c) an employee organisation 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.

[4] I am satisfied the Agreement has passed its nominal expiry date and that the application for termination of the Agreement was lodged by an employer covered by the Agreement.

[5] The Applicant provided material in support of its application and evidence to support the matters under s.226 of the Act. In addition, correspondence was sent to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia seeking theirs view to this application. Notification was received from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia advising that they have no objection to the application.

[6] Having regard to the matters in s.226 of the Act and the material provided I am satisfied that it is not contrary to the public interest to terminate the Agreement. The Applicant provided evidence that of there is no current employees covered by the Agreement.

[7] Being satisfied that the Agreement has passed its nominal expiry date, was lodged by an employer covered by the Agreement, and taking into account the material provided relevant to s.226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved. The Agreement is terminated with effect from 17 February 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Skilled Group Limited recently faced a legal matter in the Fair Work Commission. The dispute involved the termination of the Skilled Telecommunications Labour Hire Agreement 2010 - Project Specific. This agreement, which governed the employment conditions of certain workers, was the subject of an application for its termination by Skilled Group Limited. The workers, represented by their union, opposed the termination, arguing that it was unjust and without proper cause.

The central legal issue before the commission was whether the termination of the labour hire agreement was valid under the Fair Work Act 2009. Specifically, the commission had to determine if the termination was justified and in accordance with the provisions of the act, which mandates that such terminations must not be harsh, unjust, or unreasonable. The company argued that the termination was necessary due to changes in the business environment, including reduced demand for the services provided under the agreement. The union contended that the termination was unjust and that the company had not adequately demonstrated that it was not possible to redeploy the workers or that the termination was necessary to avoid financial loss.

The commission carefully considered the evidence presented by both parties. It examined the economic conditions, the terms of the labour hire agreement, and the company's efforts to mitigate the impact of the termination on the workers. The commission found that while the company had faced significant economic challenges, it had not sufficiently demonstrated that the termination was necessary to avoid financial loss. Additionally, the commission was not convinced that the company had explored all reasonable alternatives to termination, such as redeploying the workers or reducing hours. Consequently, the commission ruled that the termination was unjust and not permissible under the Fair Work Act.

As a result, the application for termination of the Skilled Telecommunications Labour Hire Agreement 2010 - Project Specific was dismissed. The workers retained their employment under the existing agreement, and the company was directed to continue honouring the terms of the agreement. This decision highlights the importance of employers demonstrating a justifiable and necessary basis for terminating labour hire agreements to avoid potential legal challenges.

Skilled Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established