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
(AG2018/1596)

STOWE AUSTRALIA HAY POINT EXPANSION 3 PROJECT ENTERPRISE AGREEMENT

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

Application for termination of the Stowe Australia Hay Point Expansion 3 Project Enterprise 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 Hay Point Expansion 3 Project Enterprise 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

The case before the Fair Work Commission involved an application by Stowe Australia Pty Ltd to terminate the Stowe Australia Hay Point Expansion 3 Project Enterprise Agreement. The application was made under section 241 of the Fair Work Act 2009, seeking termination due to a substantial change in circumstances. The dispute centred around whether the significant reduction in the workforce and project scope constituted a substantial change warranting the termination of the enterprise agreement. The Commission had to determine whether the changes were so significant that the terms of the existing agreement were no longer suited to the current operational context of the company.

The primary legal issue before the Commission was whether the changes in the company's workforce and project scope constituted a substantial change in circumstances that justified the termination of the enterprise agreement. The Commission examined the definition of 'substantial change in circumstances' and assessed whether the changes had fundamentally altered the bargaining context between the parties. This involved a detailed analysis of the terms of the existing agreement, the nature and extent of the changes, and the impact of these changes on the ability to effectively implement the agreement. The Commission also had to consider the fairness and reasonableness of the proposed termination in the context of the existing employment conditions.

In its decision, the Commission concluded that the significant reduction in the workforce and the scope of the project did indeed constitute a substantial change in circumstances. The changes had fundamentally altered the operational environment and the bargaining context, rendering the existing agreement unsuited to the current circumstances. The Commission found that the proposed termination was fair and reasonable, given the substantial changes and the inability to effectively implement the agreement under the new conditions. Consequently, the Commission granted the application for termination, allowing the company to proceed without the constraints of the existing enterprise agreement.

The Fair Work Commission ordered the termination of the Stowe Australia Hay Point Expansion 3 Project Enterprise Agreement, effective from the date specified in the application. This decision enabled Stowe Australia Pty Ltd to operate under a new set of terms and conditions that better reflected the current operational context and workforce size. The termination was deemed necessary to allow the company to adapt to the significant changes in its business environment.

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