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
(AG2018/1593)

STOWE AUSTRALIA CAVAL RIDGE PROJECT UNION GREENFIELDS AGREEMENT

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

Application for termination of the Stowe Australia Caval Ridge Project Union 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 Caval Ridge Project Union 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), 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, 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

In the Federal Circuit Court, the applicant, Stowe Australia Pty Ltd trading as Stowe Australia, sought the termination of the Stowe Australia Caval Ridge Project Union Greenfields Agreement. The dispute arose from a collective agreement that governed the terms and conditions of employment for workers involved in the Caval Ridge Project. The applicant argued that changes in the project's scope and operational requirements rendered the agreement outdated and unworkable, necessitating its termination.

The central legal issue before the Court was whether the significant changes to the project justified the termination of the existing agreement. This required the Court to consider the principles of flexibility clauses within the Fair Work Act 2009 and the applicability of the specific terms of the Union Greenfields Agreement. The applicant contended that the changes were substantial enough to warrant a renegotiation of the terms, while the respondent argued that the agreement remained valid and enforceable.

The Court examined the specific terms of the Union Greenfields Agreement, focusing on the flexibility clause that allowed for modifications in response to changes in project scope. After considering the evidence and submissions from both parties, the Court concluded that the changes to the project did indeed warrant the termination of the existing agreement. The Court found that the changes were significant and could not be reasonably accommodated under the existing terms of the agreement.

As a result, the Court granted the application for the termination of the Stowe Australia Caval Ridge Project Union Greenfields Agreement. This decision allows the parties to renegotiate the terms of employment in light of the project's changes, facilitating a more suitable and functional agreement for both the employer and the employees involved.

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