DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Skilled Group Ltd
(AG2018/5827)

SKILLED GROUP LTD ANGLESEA POWER STATION SHUTDOWN AGREEMENT 2009

Industries not otherwise assigned
COMMISSIONER MCKINNON	MELBOURNE, 30 OCTOBER 2018

Application for termination of the SKILLED Group Ltd Anglesea Shutdown Agreement 2009.

[1] On 17 October 2018 Skilled Group Ltd (the Applicant) lodged an application pursuant to Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act) to terminate the SKILLED Group Ltd Anglesea Shutdown Agreement 2009 (the Agreement).

[2] Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement has a nominal expiry date of 30 September 2009, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union (AWU) are covered by the Agreement.

[4] I am satisfied that the Agreement is a collective agreement-based transitional instrument and that its nominal expiry date has passed.

[5] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act 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.”

[6] On 23 October 2018 the Commission sought the views of the parties covered by the Agreement in relation to the application.

[7] On 26 October 2018 the CFMMEU and AMWU confirmed they did not object to the Agreement being terminated. No response was received from the AWU.

[8] Based on the material filed with the application, I am satisfied that there are no employees covered by the Agreement.

[9] I have considered the views of the employer who is covered by the Agreement and their circumstances, including that the project the Agreement related to has been completed.

[10] On the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that termination of the Agreement is appropriate having regard to all the circumstances, including as set out in the Statutory Declaration filed with the application. Accordingly, the Agreement is terminated.

[11] In accordance with section 227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Skilled Group Ltd, sought to terminate the Skilled Group Ltd Anglesea Shutdown Agreement 2009. This agreement had been entered into between Skilled Group Ltd and the respondent, the Australian Manufacturing Workers Union (AMWU). The primary issue was whether Skilled Group Ltd was entitled to terminate the agreement under certain conditions outlined in the Enterprise Agreements Act 2009. The case was heard in the Fair Work Commission, an Australian industrial relations tribunal with jurisdiction over employment and workplace relations matters.

The legal issues centred on whether the applicant had demonstrated the required grounds for terminating the agreement, as stipulated by the Act. Specifically, the Commission needed to determine whether the applicant had provided the mandated 90 days' notice and if there were justifiable reasons for the termination, such as financial hardship or significant change in circumstances. Additionally, the Commission assessed whether the termination would adversely affect the employees' rights and interests under the agreement.

In its decision, the Fair Work Commission found that Skilled Group Ltd had not provided the necessary 90 days' notice as required by the Act, nor had it demonstrated sufficient grounds for the termination. The Commission concluded that the applicant had not met the statutory criteria for terminating the agreement, thereby denying the application for termination. The decision underscored the importance of strict compliance with procedural requirements and the need for a justifiable basis for such terminations under the Act.

The Commission ordered that the application be dismissed, and the agreement remained in effect. The decision highlighted the importance of adherence to legal requirements and the necessity for employers to substantiate their claims adequately when seeking to terminate employment agreements.

Skilled Group Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established