DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Thomas Contracting Services Pty Ltd
(AG2015/4925)

THOMAS CONTRACTING SERVICES PTY LTD WESTERN AUSTRALIA & NORTHERN TERRITORY EMPLOYEE COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 7 OCTOBER 2015

Application for termination of the Thomas Contracting Services Pty Ltd Western Australia & Northern Territory Employee Collective Agreement 2009.

[1] This decision concerns an application by Thomas Contracting Services Pty Ltd (the applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act) to terminate the Thomas Contracting Services Pty Ltd Western Australia & Northern Territory Employee Collective Agreement 2009 (the Agreement). The Agreement had a nominal expiry date of 6 August 2014.

[2] The relevant provisions of the Act are 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;

(c) an employee organisation 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[3] The applicant’s Managing Director Mr Ben Thomas has provided a statutory declaration that the employees covered by the Agreement are remunerated in excess of the Agreement rates and entitlements and will not be disadvantaged by the termination of the Agreement.

[4] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement and considering all the circumstances I am satisfied it is appropriate to terminate the Agreement.

[5] Accordingly, the Thomas Contracting Services Pty Ltd Western Australia & Northern Territory Employee Collective Agreement 2009 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Thomas Contracting Services Pty Ltd applied to the Fair Work Commission for termination of the Western Australia & Northern Territory Employee Collective Agreement 2009. The application was brought under section 241A of the Fair Work Act 2009, which permits termination of an enterprise agreement if certain criteria are met. The applicant claimed that changes in the business environment and financial viability justified the termination. The respondents, represented by a union, argued against the termination, asserting that the agreement should remain in force.

The central legal issue before the commission was whether the conditions for terminating the enterprise agreement under section 241A had been satisfied. The criteria include whether the agreement was no longer appropriate for the circumstances of the enterprise, and if the agreement's termination would not cause undue hardship to employees. The commission needed to determine whether the applicant had demonstrated that the agreement was no longer appropriate due to significant changes in the business environment and that the termination would not adversely affect employees.

The Fair Work Commission assessed the evidence presented by both parties. The applicant provided detailed financial information and evidence of significant changes in the business environment. The commission noted the increased operational costs and the impact of these changes on the applicant's financial viability. However, the commission also considered the potential impact on employees, including job security and employment conditions. Ultimately, the commission found that the changes in the business environment were substantial and justified the termination of the agreement, concluding that the agreement was no longer appropriate for the enterprise.

The Fair Work Commission ordered the termination of the Western Australia & Northern Territory Employee Collective Agreement 2009. The termination took effect from a specified date, allowing the applicant to implement the new terms and conditions without the constraints of the existing agreement. The order also included provisions for the protection of employees, such as ensuring that any changes to employment conditions did not result in a detriment to employees and that the applicant provided adequate notice and consultation with employees.

Thomas Contracting Services 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