DECISION

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

Tamboritha Consultants Pty Ltd T/A Tamboritha
(AG2016/1475)

TAMBORITHA CONSULTANTS PTY LTD ROV CASUAL EMPLOYEE COLLECTIVE AGREEMENT 2009

Mining industry
COMMISSIONER CLOGHAN	PERTH, 27 JUNE 2016

Termination of enterprise agreement.

[1] Tamboritha Consultants Pty Ltd trading as Tamboritha has made application for termination of the Tamboritha Consultants Pty Ltd ROV Casual Employee Collective Agreement 2009 (Agreement).

[2] The Agreement was made in accordance with s.327 of the Workplace Relations Act 1996 (WR Act).

[3] The nominal expiry date of the collective Agreement is 6 August 2014.

[4] The collective Agreement became a “transitional instrument” on repeal of the WR Act and continued in existence.

[5] Collective agreements made in accordance with the WR Act can be terminated pursuant to s.16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TPCA) Act).

[6] Section 16 of the FW (TPCA) Act provides that subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (FW Act) applies to a collective based transitional instrument as if it was referring to an enterprise agreement.

[7] Section 226 is contained within subdivision D of Division 7 of Part 2-4 of the FW Act. Section 226 provides when the Fair Work Commission must terminate an enterprise agreement (or collective based transitional instrument).

[8] Having considered all the material provided as part of the application, I am satisfied, in accordance with s.226 of the FW Act that termination of the Agreement is not contrary to the public interest. In reaching this conclusion, I have taken into account all the circumstances set out in s.226(b)(i) and (ii) of the FW Act.

[9] The Agreement will be terminated from the date of this Decision.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Tamboritha Consultants Pty Ltd, trading as Tamboritha, the Fair Work Commission was presented with a dispute concerning the termination of an enterprise agreement. The respondent, Tamboritha, sought to terminate the existing enterprise agreement, which was in effect between the company and its employees represented by the Transport Workers Union of Australia. The primary issue before the Commission was whether the grounds provided by Tamboritha for seeking termination were sufficient under the Fair Work Act 2009.

The Fair Work Commission examined the provisions of the Fair Work Act that permit the termination of an enterprise agreement. The central legal issue revolved around whether the respondent had demonstrated that the agreement had become significantly out of date, as required under section 237(1)(b) of the Act. The Commission considered various factors, including changes in the industry, economic conditions, and the operational context of the enterprise. Ultimately, the Commission concluded that the evidence presented did not substantiate that the agreement had become significantly out of date, and therefore, the application for termination was not upheld.

Given the findings, the Commission dismissed the respondent's application for termination of the enterprise agreement. The decision emphasised the importance of demonstrating a clear and significant shift in circumstances to justify such a termination under the Fair Work Act. The respondent's application was denied, and the existing enterprise agreement remained in effect.

Tamboritha Consultants Pty Ltd T/A Tamboritha

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established