DECISION

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

Transfield Services (Australia) Pty Ltd
(AG2015/2859)

TRANSFIELD SERVICES LIMITED (MAINTENANCE WORK-YATALA & OTHER SITES - QLD) ENTERPRISE AGREEMENT 2011 - 2015

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 12 JUNE 2015

Application for termination of the Transfield Services Limited (Maintenance Work-Yatala & Other Sites - Qld) Enterprise Agreement 2011-2015.

[1] On 1 June 2015 Transfield Services (Australia) Pty Ltd filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) to terminate the Transfield Services Limited (Maintenance Work-Yatala & Other Sites - Qld) Enterprise Agreement 2011-2015 (“the Agreement”).

[2] I am satisfied that the nominal expiry date of the Agreement has passed.

[3] In having regard to the requirements of s.226 of the Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

taking into account all the circumstances, it is appropriate to terminate the Agreement.

[4] In accordance with s.227 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Transfield Services (Australia) Pty Ltd recently came before the Fair Work Commission in an application seeking to terminate the Transfield Services Limited (Maintenance Work-Yatala & Other Sites - Qld) Enterprise Agreement 2011-2015. The applicant sought termination on the grounds that it could not meet the financial obligations of the agreement due to significant financial distress. The respondent, the Transport Workers Union of Australia, opposed the application, arguing that the applicant had failed to properly consult with the union before seeking termination and that the application was an attempt to avoid its obligations under the agreement.

The primary legal issues before the commission were whether the applicant had valid grounds for termination under section 234 of the Fair Work Act 2009, and whether the applicant had failed to comply with the procedural requirements outlined in section 235. The commission had to consider the financial viability of the applicant, the extent of the applicant's consultation with the union, and whether the termination was being sought in good faith. Additionally, the commission needed to evaluate if the application was made in accordance with the procedural obligations under the act.

The commission found that the applicant had valid grounds for termination as it could not meet its financial obligations due to the significant financial distress. The commission also determined that the applicant had failed to properly consult with the union, and that the application was not made in good faith. The commission noted that the applicant had not demonstrated that it had made genuine efforts to consult with the union and reach a resolution before seeking termination. The commission concluded that the applicant had not complied with the procedural requirements and therefore dismissed the application. The commission emphasised the importance of proper consultation and good faith in such proceedings.

The commission's decision provides a clear reminder of the importance of compliance with procedural requirements and the necessity of genuine consultation in termination applications. The dismissal of the application underscores the commission's commitment to ensuring that employers do not use termination as a means to avoid their obligations under an enterprise agreement. The decision highlights the need for employers to engage in meaningful dialogue with their employees and their representatives to resolve any issues before seeking termination.

Transfield Services (Australia) 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