DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Sun Engineering (Qld) Pty Ltd
(AG2018/2369)

SUN ENGINEERING (QLD) PTY LTD CERTIFIED AGREEMENT 2009

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

Application for termination of the Sun Engineering (Qld) Pty Ltd Certified Agreement 2009.

[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 2009 (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

The applicant, a representative of employers in the engineering industry, sought to terminate the Sun Engineering (Qld) Pty Ltd Certified Agreement 2009. This agreement was in place between the applicant and the respondent union, which represented workers within the engineering sector. The primary dispute centred on whether the changes in the industry, including technological advancements and shifts in workforce demands, warranted the termination of the existing agreement.

The court was tasked with determining whether the circumstances had altered to such an extent that the continuation of the certified agreement was no longer appropriate. This involved assessing the relevance of the agreement's terms in light of current industry conditions and whether the agreement still served the interests of both employers and employees effectively. The court also needed to consider whether the application for termination complied with the relevant statutory requirements.

Upon examining the evidence presented, the court found that the industry had undergone significant changes, which rendered certain provisions of the agreement less effective. The court concluded that the application met the statutory criteria for termination, and that the agreement should be terminated to better align with the current economic and industrial landscape. The decision was made in the interest of ensuring that the terms of the agreement remained fair and relevant to both parties. The court ordered the termination of the Sun Engineering (Qld) Pty Ltd Certified Agreement 2009, effective from a specified date.

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