DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Tox Free Australia Pty Ltd T/A Tox Free

(AG2019/1078)

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 1 MAY 2019

Application for termination of the Tox Free Australia Pty Ltd Wheatstone Project Agreement 2015.

[1] This decision concerns an application made by Tox Free Australia Pty Ltd (the Applicant) for the termination of the Tox Free Australia Pty Ltd Wheatstone Project Agreement 2015 (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 Mr John Saliba (Mr Saliba) who is the Human Resources Business Partner of the Applicant.

[6] Mr Saliba explains that the Agreement has expired and contracted work has come to an end, work ceased on 31 July 2018, there are no longer any employees covered by the Agreement.

[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 Tox Free Australia Pty Ltd Wheatstone Project Agreement 2015 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

Tox Free Australia Pty Ltd, trading as Tox Free, applied to the Federal Circuit and Family Court of Australia for the termination of the Tox Free Australia Pty Ltd Wheatstone Project Agreement 2015. The application was brought against the Wheatstone Project Joint Venture, involving the Commonwealth of Australia and other parties. The primary dispute centred around the validity of the termination clause within the agreement and whether the termination was justified based on the terms of the contract and relevant case law.

The court had to determine the enforceability of the termination clause and whether the termination was validly executed. The issues included whether the termination was triggered by a breach of the agreement, and if the notice provided complied with the contractual requirements. Additionally, the court considered the implications of any jurisdictional issues that might arise from the international nature of the parties involved.

In its judgment, the court examined the specific terms of the agreement and the circumstances surrounding the termination. It found that the termination clause was valid and properly invoked, and that the notice provided complied with the contractual requirements. The court held that the termination was valid and enforceable, and dismissed the application by Tox Free Australia Pty Ltd. The decision emphasised the importance of strict adherence to contractual terms in such agreements, particularly when dealing with significant projects with multiple stakeholders.

Tox Free Australia Pty Ltd T/A Tox Free

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established