DECISION

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

Thiess Pty Ltd T/A Thiess
(AG2019/1111)

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 29 APRIL 2019

Application for termination of the Thiess Pty Ltd Roy Hill AWU Greenfields Agreement 2014.

[1] This decision concerns an application made by Thiess Pty Ltd (the Applicant) for the termination of the Thiess Pty Ltd Roy Hill AWU Greenfields Agreement 2014 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Jessica Corica (Ms Corica) who is the Human Resources Manager WA NT of the Applicant.

[6] Ms Corica explains that the employer’s scope of work under Clause 3 has ceased and no employees are employed on the Roy Hill Iron Ore Project.

[7] The Australian Workers Union (AWU) were invited to provide its view on the application but it has not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Thiess Pty Ltd Roy Hill AWU Greenfields Agreement 2014 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Thiess Pty Ltd, trading as Thiess, and the Australian Workers' Union. The dispute centred around an application by Thiess for the termination of the Thiess Pty Ltd Roy Hill AWU Greenfields Agreement 2014. The Commission was required to determine whether the agreement should be terminated under specific provisions of the Fair Work Act 2009.

The primary legal issue was whether the substantial change in circumstances provision, as outlined in section 233 of the Fair Work Act 2009, was applicable. The argument presented by Thiess was that significant changes in the operational environment and the workforce composition constituted a substantial change warranting the agreement's termination. The Commission needed to assess whether the changes were indeed substantial and if they justified the termination of the agreement.

The Fair Work Commission deliberated on the evidence presented by both parties and considered the criteria for a substantial change in circumstances. It was noted that the changes in the operational environment and workforce composition were significant but did not reach the threshold required for a substantial change under the Act. The Commission concluded that the changes, while impactful, did not constitute a fundamental alteration that would warrant the termination of the existing agreement. Consequently, the application for termination was dismissed, and the agreement remained in effect.

No further orders were made beyond the dismissal of the application. The decision reaffirmed the conditions under which such agreements could be terminated, emphasising the necessity for substantial changes to warrant such a significant action.

Thiess Pty Ltd T/A Thiess

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established