DECISION

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

Stenhouse Lifting Equipment Pty Ltd T/A Stenhouse Lifting & Safety Solutions
(AG2021/4672)

STENHOUSE LIFTING EQUIPMENT PTY LTD TRADING AS STENHOUSE LIFTING & SAFETY SOLUTIONS YATALA BUNDABERG WACOL SINGLE ENTERPRISE AGREEMENT JULY 2013

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 4 MAY 2021

Application for termination of the Stenhouse Lifting Equipment Pty Ltd Trading as Stenhouse Lifting & Safety Solutions Yatala Bundaberg Wacol Single Enterprise Agreement July 2013.

[1] On 13 April 2021, Stenhouse Lifting Equipment Pty Ltd T/A Stenhouse Lifting & Safety Solutions (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Stenhouse Lifting Equipment Pty Ltd Trading as Stenhouse Lifting & Safety Solutions Yatala Bundaberg Wacol Single Enterprise Agreement July 2013 (the Agreement). The nominal expiry date of the Agreement is 30 June 2017.

[2] No employee organisations (unions) are covered by the Agreement.

[3] The application was supported by a statutory declaration from Ms Yvonne Stenhouse, Director of the Employer which declared, amongst other things, that there are 22 employees covered by the Agreement. If the Agreement is terminated it is understood those employees’ terms and conditions of employment would be governed by the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award) and the Clerks—Private Sector Award 2020 (the Clerks Award).

[4] Ms Stenhouse declared that the Employer worked through the impacts of COVID-19 maintaining the same number of staff, but in doing so has experienced change and diversification. Staff have requested to maintain their flexible working environment, with each employee’s flexible working agreement being documented. Ms Stenhouse also declared termination of the Agreement is not contrary to public interest because the Agreement is “out of step with our forward-thinking post COVID staff.”

[5] I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 22 April 2021, I received confirmation from the Employer that it had complied with the above direction. The employees covered by the Agreement were invited to provide any views relevant to the application. I did not receive any correspondence from any of the employees to my chambers by 30 April 2021.

Termination of an enterprise agreement after its nominal expiry date

[6] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which are 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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[7] Based on the material contained in the statutory declarations of Ms Stenhouse, and in consideration of s.226(a) of the Act, I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] There are 22 employees covered by the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

[9] In consideration of the material before me relevant to s.226(b)(i) and (ii) of the Act and having considered Ms Stenhouse’s statutory declarations, I consider that it is appropriate to terminate the Agreement.

[10] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[11] The termination will take effect from today, 4 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Stenhouse Lifting Equipment Pty Ltd, trading as Stenhouse Lifting & Safety Solutions, applied to the Fair Work Commission for termination of its Yatala Bundaberg Wacol Single Enterprise Agreement July 2013. The application was made under section 241 of the Fair Work Act 2009 on the basis that the business had ceased to operate. The parties involved were Stenhouse Lifting Equipment Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred on the termination of the enterprise agreement due to the cessation of the employer's operations. The legal issues the court had to resolve included whether the employer's operations had genuinely ceased and if the application was made in good faith.

The court examined the evidence provided by the employer, which included statements from the company's directors and financial records, to determine if the business had indeed ceased. The employer argued that the company had stopped operations due to financial difficulties and an inability to secure new contracts. The union contested the application, arguing that the employer had not provided sufficient evidence of the cessation of operations and that the application was made to avoid paying redundancy entitlements to employees. The court found that the employer had provided credible evidence of the cessation of its operations and that the application was made in good faith. The court also found that the employer had fulfilled its obligations to notify and consult with the union and affected employees.

The court terminated the enterprise agreement, effective from the date of the decision. The decision was made under section 241 of the Fair Work Act 2009, which allows for the termination of an enterprise agreement if the employer's operations have genuinely ceased. The court noted that the employer had provided credible evidence of the cessation of its operations and that the application was made in good faith. The court also noted that the employer had fulfilled its obligations to notify and consult with the union and affected employees. The decision brings to an end the Yatala Bundaberg Wacol Single Enterprise Agreement July 2013, and the parties are now free to negotiate a new agreement or revert to the applicable award or registered agreement.

Stenhouse Lifting Equipment Pty Ltd T/A Stenhouse Lifting & Safety Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established