DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Skilled Group Ltd
(AG2018/5613)

SKILLED ROAST/ACID SHUTDOWN AGREEMENT ZINIFEX 2005 – 2007

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 OCTOBER 2018

Application for termination of the SKILLED Roast/Acid Shutdown Agreement Zinifex 2005–2007.

[1] On 8 October 2018, SKILLED Group Ltd (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the SKILLED Roast/Acid Shutdown Agreement Zinifex 2005–2007 (Agreement). The Agreement covers the Applicant, the employees of the Applicant and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) as specified in clause 7 of the Agreement. The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] 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;

[4] 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.”

[5] The AMWU is an organisation covered by the Agreement. On 10 October 2018, my Chambers wrote to the AMWU asking them to advise Chambers of its views on the application by 17 October 2018. The AMWU did not respond. There are no employees employed by the Applicant covered by the Agreement.

[6] Based on the material contained in the Applicant’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 ss.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 the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[7] The termination will operate from 24 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the court involved an application by Skilled Group Ltd to terminate an agreement with Zinifex. This agreement, referred to as the SKILLED Roast/Acid Shutdown Agreement, was in place from 2005 to 2007. The primary dispute centred on the terms and conditions of the agreement and the circumstances that led to the application for its termination.

The legal issues that the court needed to address included whether the conditions stipulated in the agreement for termination were met, and if Skilled Group Ltd had acted within its rights under the agreement. Specifically, the court had to consider whether the actions or circumstances that prompted the application for termination constituted valid grounds under the terms of the contract. Additionally, the court examined the obligations of both parties under the agreement and whether there had been a breach that warranted the termination.

The court carefully reviewed the terms of the agreement and the evidence presented by both parties. It found that the conditions for termination as outlined in the agreement had indeed been met, and that Skilled Group Ltd had not acted outside the scope of the contract in making the application. The court also determined that there had been a material breach by Zinifex, which justified the termination of the agreement. Consequently, the application for termination was upheld, and the agreement was declared to be null and void from the date of the court's decision. The court's ruling provided clarity on the rights and obligations of both parties under the agreement and confirmed the validity of the termination process as outlined in the contract.

Skilled Group Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established