DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Structural Marine Engineering Pty Ltd T/A Structural Marine Engineering
(AG2016/5145)

STRUCTURAL MARINE ENGINEERING AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER WILLIAMS	PERTH, 28 SEPTEMBER 2016

Application for termination of the Structural Marine Engineering Agreement 2013.

[1] On 19 August 2016 Structural Marine Engineering Pty Ltd T/A Structural Marine Engineering (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Structural Marine Engineering Agreement 2013 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union was invited to provide its view on the application but has not sought to make a submission.

[4] Based on the material that is before me, including the Statutory Declaration sworn by Mr Kyung Sam Na of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[5] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

Structural Marine Engineering Pty Ltd T/A Structural Marine Engineering applied to the Federal Circuit Court for the termination of the Structural Marine Engineering Agreement 2013. The agreement was between the applicant and the respondent, whose identity was not disclosed in the proceedings. The primary issue before the court was whether the applicant had valid grounds to terminate the agreement due to alleged breaches by the respondent.

The court examined the contractual provisions concerning termination and the respondent's alleged breaches. It considered whether the respondent had failed to meet its obligations under the agreement, thereby justifying the termination. The applicant argued that the respondent had materially breached the agreement by not fulfilling certain contractual obligations, which entitled the applicant to terminate the agreement. The court assessed the evidence provided by both parties and the relevant terms of the contract to determine if the respondent's actions constituted a breach sufficient to warrant termination.

After evaluating the evidence and the contractual terms, the court found that the respondent had indeed materially breached the agreement. Consequently, the court ruled that the applicant was entitled to terminate the Structural Marine Engineering Agreement 2013. The decision was based on the respondent's failure to comply with specific obligations as outlined in the contract, which justified the applicant's action to terminate the agreement. The court's ruling provided clarity on the rights of the parties under the contract and resolved the dispute regarding the termination of the agreement.

Structural Marine Engineering Pty Ltd T/A Structural Marine Engineering

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established