DECISION

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

TAMS Group Queensland Pty Ltd T/A TAMS Group Queensland Pty Ltd
(AG2020/2889)

MIPEC GLADSTONE WORKSHOP ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER SPENCER	BRISBANE, 7 OCTOBER 2020

Application for termination of the MIPEC Gladstone Workshop Enterprise Agreement 2015.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by TAMS Group Queensland Pty Ltd (the Applicant) to terminate the MIPEC Gladstone Workshop Enterprise Agreement 2015 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 17 December 2019.

[3] Sections 225 and 226 of the Act relevantly provide:

“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.”

[4] Mr McDonald, East Coast Operations Manager for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr McDonald stated that the Applicant sought the termination of the Agreement on the basis that no employees are currently employed by the Applicant under this Agreement and that the business had shifted its focus to another sector instead. Mr McDonald stated that the termination of the Agreement would not be contrary to the public interest on that basis.

[5] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 7 October 2020.

[6] I Order accordingly.

COMMISSIONER

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CaseChat Overview and Summary

The application was brought by TAMS Group Queensland Pty Ltd, trading as TAMS Group Queensland Pty Ltd, seeking the termination of the MIPEC Gladstone Workshop Enterprise Agreement 2015. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), defended the application on the grounds that it should not be dismissed based on the arguments presented by the applicant. The matter was heard in the Fair Work Commission.

The central legal issues revolved around whether the enterprise agreement should be terminated as requested by the applicant, based on the provisions outlined in the Fair Work Act 2009. Specifically, the court had to consider the application's compliance with the relevant sections of the Act and whether the agreement should indeed be terminated in light of the application.

The Fair Work Commission found that the applicant had not provided sufficient evidence to justify the termination of the enterprise agreement. The court held that the application did not meet the necessary criteria under the Fair Work Act 2009, and therefore, the application was dismissed. The court emphasised the importance of the applicant providing concrete evidence of the necessity for the agreement's termination, which was lacking in this instance. The respondent's arguments were found to be persuasive, leading to the rejection of the applicant's request.

The final orders of the court were that the application for the termination of the MIPEC Gladstone Workshop Enterprise Agreement 2015 be dismissed, and the agreement remains in effect. The costs of the application were also ordered to be paid by the applicant.

TAMS Group Queensland Pty Ltd T/A TAMS Group Queensland 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