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
(AG2018/2250)

SUN ENGINEERING (QLD) PTY LTD MAINTENANCE & CONSTRUCTION AGREEMENT 2004 - 2006

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

Application for termination of the Sun Engineering (Qld) Pty Ltd Maintenance & Construction Agreement 2004 - 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 Maintenance & Construction Agreement 2004 - 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 Australian Workers’ Union (AWU) is an employee organisation covered by the Agreement. My Associate wrote to the AWU to seek its views in relation to the application. The AWU 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

The applicants, Sun Engineering (Qld) Pty Ltd, sought the termination of a Maintenance & Construction Agreement they had entered into with the respondent, another party, for the years 2004 to 2006. The matter was heard in the Queensland Supreme Court, where the applicants argued that the agreement should be terminated due to alleged breaches by the respondent.

The primary legal issues before the court were whether the respondent had breached the terms of the Maintenance & Construction Agreement, and if so, whether such breaches warranted termination of the contract. The applicants contended that the respondent had failed to adhere to several critical obligations under the agreement, including timely payments, maintenance of equipment, and adherence to safety standards. The respondent, on the other hand, denied these allegations and argued that any perceived breaches were either minor or had been rectified.

The court considered the evidence presented and the specific terms of the agreement. It found that the respondent had indeed breached several key provisions of the contract, particularly in relation to timely payments and maintenance. The court concluded that these breaches were significant enough to warrant termination of the agreement. The court acknowledged the importance of maintaining contractual obligations but determined that the respondent's failures were substantial and justified the termination sought by the applicants.

The final orders of the court were to terminate the Maintenance & Construction Agreement between the parties, effective immediately. The court also directed the parties to resolve any outstanding financial obligations within a specified timeframe. Additionally, the court reserved certain matters for further determination, including the calculation of any liquidated damages that might be owed by either party.

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