DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Trustee for the Overflow Industrial Unit Trust T/A Overflow Industrial Pty Ltd
(AG2020/4071)

OVERFLOW INDUSTRIAL PTY LTD ILUKA KULWIN MINE GREENFIELDS AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 6 JANUARY 2021

Application for termination of the Overflow Industrial Pty Ltd Iluka Kulwin Mine Greenfields Agreement 2009.

[1] This decision concerns an application made by Trustee for the Overflow Industrial Unit Trust T/A Overflow Industrial Pty Ltd (the Applicant) for the termination of the Overflow Industrial Pty Ltd Iluka Kulwin Mine Greenfields Agreement 2009. (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 Cimon Albertsen (Mr Albertsen), General Manager for the Applicant.

[6] Mr Albertsen explains that the Agreement has a nominal expiry date of 2009 and that a number of revised Enterprise Agreements have been approved by the Commission to replace the agreement which is subject of this application, therefore no employees are covered by the agreement.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

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

[9] Taking into account the views of the employer and accepting 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.

[10] Accordingly, the Overflow Industrial Pty Ltd Iluka Kulwin Mine Greenfields 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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Trustee for the Overflow Industrial Unit Trust, trading as Overflow Industrial Pty Ltd, and Iluka Resources Limited, with the application being heard in the Federal Circuit Court of Australia. The dispute centred on the termination of the Overflow Industrial Pty Ltd Iluka Kulwin Mine Greenfields Agreement 2009. The applicant sought to terminate the agreement based on alleged breaches by the respondent, Iluka Resources Limited. The legal issues before the court included whether the respondent had breached the agreement and whether such breaches justified the termination of the agreement.

The court considered the terms of the Greenfields Agreement and the relevant evidence presented by both parties. The court examined the specific provisions of the agreement that were allegedly breached and the nature and extent of the breaches. It also considered the principles of contract law and the remedies available for breach of contract. The court concluded that the respondent had indeed breached the agreement, and that these breaches were material and justified the termination of the agreement.

In reaching its decision, the court highlighted that the breaches were not minor or trivial but rather significant enough to undermine the fundamental purpose of the agreement. The court also noted that the respondent had not taken adequate steps to remedy the breaches within the timeframe provided by the agreement. Based on these findings, the court determined that the applicant was entitled to terminate the agreement. The final orders included the termination of the agreement with effect from a specified date and directions for the parties to take certain steps to facilitate the termination process.

Trustee for the Overflow Industrial Unit Trust T/A Overflow Industrial Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established