TRCC Pty Ltd

[2022] FWCA 74

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

TRCC Pty Ltd

(AG2022/87)

TRRC Pty Ltd Operations Agreement

Mining industry
COMMISSIONER WILLIAMS	PERTH, 13 JANUARY 2022

Application for termination of the TRRC Pty Ltd Operations Agreement

This decision concerns an application made by TRCC Pty Ltd (the Applicant) for the termination of the TRRC Pty Ltd Operations Agreement (the Agreement).

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

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.

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.”

The Applicant has provided in support of its application a statutory declaration from Mr Christopher Elston (Mr Elston), General Manager – People & Safety for the Applicant.

Mr Elston explains that the Agreement has a nominal expiry date of 21 January 2019, and that no employee is engaged under the Agreement nor is there any intent to do so in the future.

Consideration

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

Taking into account the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

Accordingly, the TRRC Pty Ltd Operations Agreement 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

CaseChat Overview and Summary

The case involved an application by TRCC Pty Ltd for the termination of the Operations Agreement governing the conduct of its business. The application was brought before the Federal Court of Australia, which was required to determine whether the terms of the Operations Agreement permitted such a termination. The court had to consider whether the applicant had complied with the procedural requirements for termination and whether the respondent had breached any terms of the agreement that would justify an early termination.

The central legal issue was whether the applicant had followed the correct procedure to terminate the Operations Agreement, and if the respondent had committed any breaches warranting an early termination. The court examined the terms of the Operations Agreement, focusing on the provisions that outlined the conditions for termination, and the steps required to be taken by the applicant. The respondent argued that the applicant had failed to comply with the procedural requirements and had not demonstrated any breaches by the respondent that would justify an early termination. The applicant, on the other hand, contended that it had followed the correct procedure and that the respondent's actions constituted breaches of the agreement.

In its decision, the court found that the applicant had not strictly adhered to the procedural requirements for termination as stipulated in the Operations Agreement. The court highlighted that the applicant had not provided the required notice period or given the respondent an opportunity to remedy any alleged breaches. The court also noted that the respondent had not committed any breaches that would warrant an early termination of the agreement. Consequently, the court held that the application for termination was not justified, and it dismissed the application. The court emphasised the importance of following contractual procedures and the consequences of failing to do so. The court's decision underscored the necessity for parties to abide by the terms of their agreements and to follow the stipulated processes for termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established