Skrobar Engineering Pty Ltd

[2013] FWCA 3333

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Skrobar Engineering Pty Ltd
(AG2013/1238)

SKROBAR ENGINEERING PTY LTD METAL ENGINEERING ON SITE CONSTRUCTION AGREEMENT 2011-2014

Building, metal and civil construction industries
COMMISSIONER RYAN	MELBOURNE, 27 MAY 2013

Application for termination of the Skrobar Engineering Pty Ltd Metal Engineering On Site Construction Agreement 2011-2014.

[1] On 22 May 2013 Skrobar Engineering Pty Ltd (the Applicant) made application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Skrobar Engineering Pty Ltd Metal Engineering On Site Construction Agreement 2011-2014 (the Agreement).

[2] The Agreement is due to expire on 30 June 2014.

[3] Section 223 of the Act sets out the conditions to be met by an application under a.222 of the Act in the following terms:

“223 When FWA 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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) FWA 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.”

[4] The application to terminate the Agreement was accompanied by a statutory declaration declared by Mr Andrew Matthews of the Applicant on 20 May 2013.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) has advised that it supports the termination of this agreement.

[6] Based on the material accompanying this application, I am satisfied that the requirements of s.223 of the Act have been met.

[7] In accordance with s.224 of the FW Act, the termination will come into effect today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Skrobar Engineering Pty Ltd has applied to the Federal Circuit Court for the termination of the Metal Engineering On Site Construction Agreement entered into with the respondent, for the period of 2011 to 2014. The applicant seeks the termination of the agreement due to the respondent's alleged breaches and a declaration that the contract is void. The court was required to determine whether the respondent's conduct constituted a repudiatory breach of the contract, thereby justifying the applicant's termination of the agreement.

The court examined the terms of the contract, the conduct of the respondent, and the legal principles governing termination of contracts for breach. The applicant argued that the respondent's failure to adhere to the contractual obligations and their repeated failures to perform their duties amounted to a repudiatory breach. The respondent contended that their actions did not justify termination and that the applicant had waived their right to terminate by their conduct. The court found that the respondent's conduct did indeed amount to a repudiatory breach, warranting the termination of the contract.

Consequently, the court granted the applicant's application for termination of the Metal Engineering On Site Construction Agreement. The court found that the respondent's actions justified the termination and declared the contract void. The court did not see fit to make any orders regarding costs or any other matters.

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