Ventia Australia Pty Ltd

[2025] FWCA 2272

[2025] FWCA 2272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Ventia Australia Pty Ltd

(AG2025/2070)

TRACE DARWIN ONSHORE ENTERPRISE AGREEMENT 2021

Oil and gas industry
COMMISSIONER RIORDAN	SYDNEY, 14 JULY 2025

Application for termination of the TRACE Darwin Onshore Enterprise Agreement 2021

1. Ventia Australia Pty Ltd (the Applicant) has applied pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the TRACE Darwin Onshore Enterprise Agreement 2021 (the Agreement) after its nominal expiry date.

1. The Agreement is a single enterprise agreement, and its nominal expiry date was 10 May 2025.

1. Sections 225 and 226 of the Act relevantly provide:

“225      Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226     Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. In support of the application, Mr Alishan Megerdichian, Senior Legal Counsel – Employee and Industrial Relations, filed a statutory declaration stating that the relevant project which applied to employees covered by the Agreement ended on or around 22 November 2023. Mr Megerdichian stated that there are no longer any employees engaged or covered by the Agreement, therefore, the Agreement has no present or future operation.

1. The Agreement covers the “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia” (CEPU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the “Australian Workers’ Union” (AWU) (jointly ‘the Unions’).

1. On 9 July 2025, I wrote to the Unions asking that they confirm the information provided in Mr Hollingworth’s declaration and to provide their views in relation to the application for termination of the Agreement.

1. Each of the Unions responded to my Chambers on that same date, confirming that there are no employees covered by the Agreement and advising that they have no opposition to the Agreement being terminated.

1. Based on the material contained in the employer’s declaration and the correspondence of the Unions, I am satisfied that the requirements of s.226 of the Act as are relevant to this application for termination have been met and that the Agreement should be terminated.

1. The termination will operate from 14 July 2025.

1. I so Order.

COMMISSIONER

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