Fair Work Act 2009

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

IVE PRINT WEB OFFSET MANDURAH ENTERPRISE AGREEMENT 2021

Application for termination of the IVE Print Web Offset Mandurah Enterprise Agreement 2021 - [2021] FWCA 5306 - Agreement terminated.

[1] An application pursuant to s225 of the Fair Work Act (Cth) (the FW Act) has been made by IVE Employment (Australia) Pty Ltd (the Applicant) to terminate the IVE Print Web Offset Mandurah Enterprise Agreement 2021 (the Agreement).

[2] Section 225 of the Act provides 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;

(c) an employee organisation covered by the agreement."

[3] The Agreement has passed its nominal expiry date of 2 September 2025. The Applicant is an employer covered by the Agreement and has standing to make the application as per s225(a).

[4] The Applicant has provided a statutory declaration stating that the Agreement does not cover any employees.

[5] The criteria for termination of an agreement are set out in s226 of the FW Act, the relevant parts of which is as follows:

"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

(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);

(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."

[6] The declaration provided by the Applicant explains that the Applicant no longer operates at the Mandurah site covered by the Agreement and has not done so since mid-2023 when all employees were made redundant. I am satisfied that this is the case and so the Agreement does not cover any employees, consistent with the requirement in s.226(1)(b). I wrote to the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) who are an employee organisation covered by the Agreement. The AMWU indicated that they were supportive of termination of the Agreement.

[7] As there are no longer any employees, there are no issues relating to bargaining as set out in s.226(4). I am not aware of any other relevant matters to be considered pursuant to s.226(5). With respect to the requirement set out in s.226(1A) I am satisfied that in all of the circumstances it is appropriate to terminate the Agreement. I therefore order that the Agreement be terminated, with termination to take effect from 6 October 2025.

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