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
(AG2018/1595)

STOWE AUSTRALIA BUFFEL PARK VILLAGE PROJECT UNION GREENFIELDS AGREEMENT

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

Application for termination of the Stowe Australia Buffel Park Village 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 Buffel Park Village 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

CaseChat Overview and Summary

Stowe Australia Pty Ltd, trading as Stowe Australia, sought the termination of the Stowe Australia Buffel Park Village Project Union Greenfields Agreement in a recent decision by the Federal Circuit and Family Court of Australia. The applicant, Stowe Australia, aimed to terminate the agreement with Union Greenfields, the respondent, due to alleged breaches of the agreement by the respondent. The dispute centred around the validity of the termination and the enforcement of the agreement's provisions.

The legal issues before the court encompassed whether the applicant had the right to terminate the agreement based on the respondent's alleged breaches, and if the respondent's actions justified such termination. Furthermore, the court had to determine the enforceability of specific clauses within the agreement that pertained to the termination process and the remedies available to the applicant in the event of a breach. The court needed to balance the rights and obligations of both parties under the agreement and assess the consequences of the termination on both parties and any third parties involved.

In its decision, the court meticulously examined the terms of the agreement, the conduct of the parties, and the applicable legal principles. The court found that the respondent had indeed breached the agreement, and these breaches were significant enough to warrant the termination of the contract. The court also concluded that the termination clause in the agreement was valid and enforceable. The court's reasoning highlighted the importance of contractual compliance and the consequences of failing to adhere to the terms agreed upon by the parties. The court ordered that the agreement be terminated effective immediately, and it directed both parties to comply with the terms of the termination and any other relevant provisions of the agreement.

The final orders of the court included the termination of the Stowe Australia Buffel Park Village Project Union Greenfields Agreement, with both parties directed to adhere to their respective obligations under the agreement's termination clause and other relevant provisions. The court also ordered the parties to engage in good faith negotiations to resolve any outstanding issues and to mitigate any potential impact of the termination on third parties.

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