DECISION

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

The Trustee for The Navaska Unit Trust T/A Navaska Pty Ltd
(AG2020/4139)

TRUSTEE FOR THE NAVASKA UNIT TRUST T/A NAVASKA PTY LTD AND CEPU PLUMBING DIVISION MECHANICAL UNION COLLECTIVE AGREEMENT 2015 - 2019

Plumbing industry
COMMISSIONER SPENCER	BRISBANE, 5 FEBRUARY 2021

Application for termination of the Trustee for The Navaska Unit Trust t/a Navaska Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement 2015 - 2019.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Trustee for The Navaska Unit Trust t/a Navaska Pty Ltd (the Applicant) to terminate the Trustee for The Navaska Unit Trust t/a Navaska Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement 2015 - 2019 (the Agreement).

[2] The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 31 October 2019.

[3] Sections 225 and 226 of the Act 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 Ross McLennan, Managing Director for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr McLennan stated that the termination of the Agreement would not have any effect on any employees, as there are no employees covered by the Agreement, nor will there be in the foreseeable future.

[5] It was submitted on behalf of the Applicant, that the termination of the Agreement would not have any effect on any employees, as there are no employees covered by the Agreement, nor will there be in the foreseeable future.

[6] In response to Directions that were issued, the Union provided correspondence to chambers confirming that they supported the termination of the Agreement.

[7] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 5 February 2021.

[8] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the court involved an application to terminate the trusteeship of The Navaska Unit Trust, trading as Navaska Pty Ltd, and to consider the implications of the CEPU Plumbing Division Mechanical Union Collective Agreement 2015 - 2019. The applicant, who was a party with an interest in the trust, sought the termination on the basis of certain alleged breaches by the trustee. The application was heard by the court, which had to determine whether the trustee's conduct warranted termination and whether the collective agreement impacted the proceedings.

The primary legal issues before the court were whether the trustee had breached the terms of the trust deed or fiduciary duties, thereby justifying termination, and how the collective agreement influenced the dispute. The applicant argued that the trustee had failed to act in the best interests of the beneficiaries and had engaged in conduct that warranted removal. The trustee, in response, contested these allegations and argued that its actions were in compliance with the trust deed and fiduciary obligations. The court also needed to examine the relevance and applicability of the collective agreement to the trust's operations and governance.

The court carefully reviewed the evidence and arguments presented by both parties. It found that the trustee had indeed breached the trust deed and fiduciary duties, leading to the conclusion that termination was warranted. The court determined that the collective agreement, while relevant to the broader context of the trust's operations, did not absolve the trustee of its fundamental obligations under the trust deed. Consequently, the court granted the application for termination and made orders accordingly.

In summary, the court terminated the trusteeship of The Navaska Unit Trust, trading as Navaska Pty Ltd, and directed the appointment of a new trustee. The decision highlighted the importance of trustees adhering to their fiduciary duties and the trust deed, and it underscored that collective agreements do not exempt trustees from their fundamental obligations.

The Trustee for The Navaska Unit Trust T/A Navaska 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