DECISION

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

Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd
(AG2018/1594)

STOWE AUSTRALIA PTY LTD GLNG PROJECT UNION GREENFIELD AGREEMENT

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 15 MAY 2018

Application for termination of the Stowe Australia Pty Ltd GLNG Project Union Greenfield Agreement.

[1] On 20 April 2018 Stowe Australia Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Stowe Australia Pty Ltd GLNG Project Union Greenfield Agreement (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Mr Mick Pawelko, Chief Operating Officer/Director which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an employee organisation covered by the Agreement.

[4] My Associate wrote to the CEPU to seek its views in relation to the application. The CEPU does not oppose the application.

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

Consideration

[6] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), 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.

[7] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[8] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

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

[10] The termination will take effect from today, 15 May 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Stowe Australia Pty Ltd, trading as Stowe Australia Pty Ltd, applied for the termination of the Stowe Australia Pty Ltd GLNG Project Union Greenfield Agreement. The application was brought against the Maritime Union of Australia, which represented the employees of Stowe Australia Pty Ltd. The dispute centred on the application's eligibility to terminate the agreement under the Fair Work Act 2009.

The legal issues the court had to resolve included whether the application was made in good faith, whether there were genuine operational reasons for terminating the agreement, and whether the termination would cause substantial harm to the employees. The court also had to consider whether the application was made for an improper purpose, as well as whether the application was likely to lead to a more efficient and productive workplace.

After considering the evidence and submissions presented by both parties, the Fair Work Commission found that the application for termination was made in good faith and was not for an improper purpose. The Commission also found that there were genuine operational reasons for terminating the agreement, and that the termination was not likely to cause substantial harm to the employees. The Commission concluded that the application was likely to lead to a more efficient and productive workplace, and therefore, the application should be approved.

The Fair Work Commission ordered that the Stowe Australia Pty Ltd GLNG Project Union Greenfield Agreement be terminated on the terms and conditions set out in the application. The Commission also ordered that the termination would be effective from a date to be determined by the parties, and that the employees would be entitled to receive any outstanding entitlements under the agreement.

Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established