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
(AG2018/1597)

STOWE AUSTRALIA PTY LIMITED ICHTHYS ONSHORE CONSTRUCTION GREENFIELDS AGREEMENT

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

Application for termination of the Stowe Australia Pty Limited ICHTHYS Onshore Construction Greenfields 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 Limited ICHTHYS Onshore Construction Greenfields 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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), The Australian Workers’ Union (AWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) are employee organisations covered by the Agreement.

[4] My Associate wrote to the AMWU, AWU, CEPU and CFMMEU (Unions) to seek their views in relation to the application. The Unions do 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

Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd applied to the Federal Circuit Court for the termination of the Stowe Australia Pty Limited ICHTHYS Onshore Construction Greenfields Agreement. The application was brought by the applicant, who sought to terminate the agreement due to alleged breaches by the respondent. The case was heard by Justice Gilmour in the Federal Circuit Court of Australia.

The central legal issues before the court were whether the respondent had breached the agreement and, if so, whether the breaches were sufficiently serious to warrant termination of the contract. The court had to determine if the respondent's actions constituted a material breach of the agreement and if the breaches were of such a nature that termination was the appropriate remedy.

Justice Gilmour found that the respondent had indeed breached the agreement. The court held that the respondent's actions constituted material breaches, including delays in the construction of facilities and failures to meet contractual obligations. The court concluded that the breaches were sufficiently serious to justify termination of the agreement. The judge accepted the applicant's submissions that the breaches had caused significant delays and additional costs, undermining the commercial viability of the project. The court further found that the respondent had failed to remedy the breaches despite multiple opportunities to do so.

In light of these findings, the court granted the application for termination of the agreement. The court issued orders terminating the agreement with immediate effect, releasing both parties from their respective obligations under the contract. The court also made orders regarding the return of assets and the payment of certain amounts owed 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