DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Sun Engineering (Qld) Pty Ltd
(AG2018/2236)

SUN ENGINEERING (QLD) PTY LTD CERTIFIED AGREEMENT

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 22 JUNE 2018

Application for termination of the Sun Engineering (Qld) Pty Ltd Certified Agreement 2006.

[1] On 29 May 2018 Sun Engineering (Qld) Pty Ltd (the Employer) applied under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Sun Engineering (Qld) Pty Ltd Certified Agreement 2006 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration of Pan Naidu, HR/Payroll Administrator 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” known as the Australian Manufacturing Workers’ Union (AMWU) is an employee organisation covered by the Agreement. My Associate wrote to the AMWU to seek its views in relation to the application. The AMWU does not oppose the application.

Legislative provisions

[4] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[5] Chapter 2, Part 2-4, Division 7, Subdivision D is as follows:

‘225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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.

…’

[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, 22 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Sun Engineering (Qld) Pty Ltd sought the termination of the Sun Engineering (Qld) Pty Ltd Certified Agreement 2006. The applicant argued that the Agreement was no longer appropriate due to significant changes in the industry and business operations. The dispute arose as the applicant claimed the existing agreement was outdated and did not reflect current market conditions, employee roles, and operational practices.

The key legal issues before the Commission were whether the applicant had met the threshold conditions for termination under the Fair Work Act 2009 and whether the changes in the industry and business warranted the termination of the existing agreement. The Commission needed to consider the substantial change of circumstances test and assess whether the changes were significant enough to justify the termination of the agreement.

The Commission found that while there had been some changes in the industry and business operations, these changes were not substantial enough to warrant the termination of the existing agreement. The applicant had not demonstrated that the changes were so significant that the terms of the agreement could no longer be considered fair and reasonable. The Commission held that the applicant had not met the threshold conditions for termination under the Fair Work Act. Consequently, the application was dismissed, and the agreement remained in force.

No further orders were made by the Commission. The existing Certified Agreement 2006 continued to apply to the parties involved.

Sun Engineering (Qld) 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