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
(AG2018/1592)

STOWE AUSTRALIA PTY LTD ABBOTT POINT COAL TERMINAL EXPANSION AGREEMENT 2009

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 15 MAY 2018

Application for termination of the Stowe Australia Pty Ltd Abbott Point Coal Terminal Expansion Agreement 2009.

[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 Ltd Abbott Point Coal Terminal Expansion Agreement 2009 (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

Stowe Australia Pty Ltd T/A Stowe Australia Pty Ltd was a party to a coal terminal expansion agreement with the Queensland Government, which was established to facilitate the expansion of the Abbott Point Coal Terminal. The applicant sought to terminate the agreement, which led to legal proceedings in the Queensland Supreme Court. The nature of the dispute centred around the enforceability of the agreement and the circumstances under which it could be terminated.

The legal issues that the court had to address involved the interpretation of the terms of the agreement, particularly those related to termination clauses, and whether the applicant had valid grounds for termination. The applicant argued that certain conditions precedent to the agreement had not been met, and that there had been a significant change in circumstances that warranted termination. The respondent, on the other hand, contended that the agreement was valid and enforceable, and that the applicant had not provided sufficient grounds for termination.

The court considered the terms of the agreement and relevant case law on termination clauses. It found that the applicant had not met the threshold for termination as specified in the agreement, and that the changes in circumstances, while significant, did not constitute a valid reason for termination under the terms of the agreement. The court held that the agreement remained valid and enforceable, and dismissed the application for termination. The respondent was granted costs of the proceedings.

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