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
(AG2018/1591)

STOWE AUSTRALIA PTY LTD - FAR SOUTH COAST ENTERPRISE AGREEMENT 2012

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 15 MAY 2018

Application for termination of the Stowe Australia Pty Ltd - Far South Coast Enterprise Agreement 2012.

[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 - Far South Coast Enterprise Agreement 2012 (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] 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

[4] 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.

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

[6] 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.

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

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Stowe Australia Pty Ltd trading as Stowe Australia Pty Ltd, sought termination of the Stowe Australia Pty Ltd - Far South Coast Enterprise Agreement 2012 (the Agreement). The dispute was brought before the Fair Work Commission (FWC). The primary issue before the FWC was whether the applicant had established sufficient grounds to warrant the termination of the Agreement. The applicant contended that the Agreement had become redundant due to significant changes in the business environment, which rendered it inequitable and unsustainable.

The FWC examined the criteria for termination under section 242 of the Fair Work Act 2009. The applicant needed to demonstrate that the Agreement was no longer fit for purpose, primarily due to substantial changes in the business circumstances since the Agreement was made. The FWC considered whether these changes were unforeseeable and whether they had a significant adverse effect on the applicant's business. Additionally, the FWC assessed if the Agreement's continuation would result in significant economic, social, or other harm to the applicant's business.

The FWC found that the applicant had not met the threshold for termination. While there were changes in the business environment, these were not deemed unforeseeable, nor did they significantly affect the applicant's business operations in a way that would justify terminating the Agreement. The FWC concluded that the changes could have been anticipated and were within the realm of normal business risk. Consequently, the application for termination was dismissed. The FWC did not find sufficient grounds to terminate the Agreement based on the applicant's submissions.

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