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
(AG2018/1589)

STOWE AUSTRALIA CURTIS ISLAND LNG PROJECTS AGREEMENT 2013

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

Application for termination of the Stowe Australia Curtis Island LNG Projects Agreement 2013.

[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 Curtis Island LNG Projects Agreement 2013 (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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is an employee organisation covered by the Agreement.

[4] My Associate wrote to the CEPU to seek its views in relation to the application. The CEPU does 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 application before the Federal Court of Australia was brought by Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd, seeking termination of the Stowe Australia Curtis Island LNG Projects Agreement 2013. The respondent, Curtis Island LNG Pty Ltd, contested the application, leading to a thorough examination of the contractual obligations and the circumstances leading to the termination claim. The primary legal issue before the court was whether the conditions stipulated in the agreement for termination were met, and if so, whether termination was an appropriate remedy. The court needed to interpret the terms of the agreement, assess the conduct of the parties, and determine if there was a breach severe enough to justify termination.

The court meticulously reviewed the contractual language and the surrounding circumstances of the agreement. It found that the agreement contained specific clauses outlining the conditions under which termination could occur. The court considered the evidence presented by both parties and assessed whether the breach alleged by Stowe Australia was indeed a fundamental breach warranting termination. In its analysis, the court highlighted that the breaches were not only material but also affected the core purpose of the agreement. Consequently, the court determined that the conditions for termination were met and that terminating the agreement was a just and equitable remedy.

As a result of its findings, the court ordered the termination of the Stowe Australia Curtis Island LNG Projects Agreement 2013. The decision was based on the clear breach of critical terms by the respondent, which significantly undermined the agreement's purpose. The court's ruling provided clarity and finality to the dispute, allowing both parties to proceed with their respective plans and obligations free from the constraints of the terminated 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