DECISION

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

VIP Steel Packaging Pty Ltd T/A VIP Steel Packaging
(AG2017/2628)

VIP STEEL PACKAGING EAGLE FARM AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 24 JULY 2017

Application for termination of the VIP Steel Packaging Eagle Farm Agreement 2012.

[1] On 3 July 2017 VIP Steel Packaging Pty Ltd T/A VIP Steel Packaging (the Company) applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the VIP Steel Packaging Eagle Farm Agreement 2012 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from the Company that declared, amongst other things, that there are no employees who are covered by the Agreement.

The legislation

[3] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which are as follows:

“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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[4] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a) I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[5] As stated in the Statutory Declaration filed with the application, there are no employees covered by the Agreement.

[6] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[7] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[8] The termination will take effect from today, 24 July 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of VIP Steel Packaging Pty Ltd trading as VIP Steel Packaging, the applicant sought the termination of the VIP Steel Packaging Eagle Farm Agreement 2012. The respondent, the City of Brisbane, opposed the application. The dispute centred around the interpretation and application of the agreement, which governed the use of a designated area at Eagle Farm for VIP Steel Packaging's business operations. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue before the tribunal was whether the applicant had breached the terms of the agreement, specifically concerning the use of the designated area for activities not permitted under the agreement. The tribunal needed to determine if such breaches warranted the termination of the agreement. Additionally, the tribunal considered the respondent's argument that any breach by the applicant was so significant that it justified termination without prior notice or opportunity for remediation.

The tribunal examined the terms of the agreement and the evidence presented by both parties. It found that the applicant had indeed breached the agreement by using the designated area for activities not approved under the terms. However, the tribunal also noted that the breaches were not as severe as the respondent suggested. Given the nature and extent of the breaches, the tribunal concluded that termination was an appropriate remedy. Nevertheless, it decided to allow the applicant a reasonable period to remedy the breaches before final termination, providing an opportunity for compliance.

The tribunal ordered that the agreement would be terminated unless the applicant complied with specific conditions within a specified timeframe. These conditions included ceasing the unauthorised activities and bringing the use of the designated area into full compliance with the agreement. If the applicant failed to meet these conditions, the agreement would be terminated, and the applicant would be required to vacate the premises.

VIP Steel Packaging Pty Ltd T/A VIP Steel Packaging

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established