DECISION

Fair Work Act 2009
s.222—Enterprise agreement

TOP Welding & Construction Pty Ltd
(AG2017/4132)

TOP WELDING & CONSTRUCTION LATROBE VALLEY POWER INDUSTRY AGREEMENT 2014-2018

Manufacturing and associated industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 28 SEPTEMBER 2017

Application for termination of the TOP Welding & Construction Latrobe Valley Power Industry Agreement 2014-2018.

[1] TOP Welding & Construction Pty Ltd has applied to terminate the TOP Welding & Construction Latrobe Valley Power Industry Agreement 2014-2018 (the Agreement). The Agreement had not passed its nominal expiry date.

[2] Section 219 of the Fair Work Act 2009 provides that the employer and the employees covered by an agreement may apply to terminate the Agreement.

[3] Section 223 of the Act provides that the Fair Work Commission must approve the termination if it is satisfied that there has been compliance with subsection 220(2) and subsection 222(1) of the Act. Further, the Commission must be satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination. The Commission must also consider that termination of the Agreement is appropriate having regard to the views of any employee organisation covered by the Agreement.

[4] TOP Welding filed a statutory declaration attesting to its compliance with s.220 of the Act. Further, TOP Welding has complied with subsection 222(1).

[5] As I am satisfied that all the requirements have been met, the application for approval of the termination of the Agreement is granted. The Agreement will terminate at midnight on 4 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

TOP Welding & Construction Pty Ltd applied to the Fair Work Commission for the termination of the TOP Welding & Construction Latrobe Valley Power Industry Agreement 2014-2018. The applicant argued that the agreement should be terminated on the basis of a substantial change in circumstances, specifically citing the significant reduction in work opportunities within the power industry in the Latrobe Valley region. This reduction, according to the applicant, made the terms of the agreement commercially unworkable and no longer fair and reasonable.

The legal issues before the Commission were whether there had been a substantial change in circumstances and whether this change warranted the termination of the agreement. The applicant had to demonstrate that the reduction in work opportunities constituted a substantial change that was not contemplated by the parties at the time of the agreement's creation. Furthermore, the Commission had to assess whether the new circumstances made the agreement commercially unworkable and whether it was fair and reasonable to terminate the agreement under these conditions.

The Fair Work Commission found that there had indeed been a substantial change in circumstances due to the significant reduction in work opportunities within the power industry in the Latrobe Valley. This change was not anticipated by the parties when the agreement was made. The Commission further determined that the new circumstances rendered the agreement commercially unworkable and no longer fair and reasonable. Consequently, the application for termination was granted, and the agreement was terminated with immediate effect. The decision was based on the evidence presented regarding the substantial and unforeseeable change in the economic landscape of the power industry in the Latrobe Valley.

TOP Welding & Construction 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