Application for termination of the Swinburne Student Life Enterprise Agreement 2020

[1] Swinburne Student Association Limited and Swinburne University of Technology (the Applicants) have made an application under s.225 of the Fair Work Act 2009 (Cth) (the Act) for the termination of the Swinburne Student Life Enterprise Agreement 2020 (the Agreement). The application is made by the employer covered by the Agreement.

[2] The Agreement is a single enterprise agreement and was approved by the Commission on 12 August 2020. It reached its nominal expiry date on 30 June 2023.

[3] The relevant provisions of the Act 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;

(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

(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);

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."

[5] Section 226 requires consideration of the views of each employer, employees and employee organisations covered by the Agreement. The Application was supported by a declaration made by Josh Gilligan, Chief Executive Officer, Swinburne Student Association Limited. Mr Gilligan declared, among other things, that there are no employees covered by the Agreement. That the Agreement "remains a legacy issue outstanding from a wind-up of the entity (Swinburne Student Amenities Association Limited T/A Swinburne Student Life) as part of the creation of a new entity (Swinburne Student Association Limited) that has its own standalone Enterprise Agreement. A single employee transferred from Swinburne Student Life to Swinburne Student Association Limited who has since resigned. As a result, the termination of the expired agreement is now appropriate."

[6] Mr Gilligan also provided a copy of correspondence demonstrating that Swinburne University of Technology, the original employer covered by the Agreement and controlling entity of Swinburne Student Amenities Association Limited (SSAA), consent to the termination of the Agreement. The correspondence from the Board Chair of the SSAA further declares there are no employees covered by the Agreement and there will not be any employees covered by the Agreement in the future.

[7] As there are no employees, the views of employees cannot be sought.

[8] The National Tertiary Education Industry Union (NTEU) is covered by the Agreement. The Commission sought the views of the NTEU in relation to the application and on 5 February 2026 they advised my Chambers that they do not oppose the application.

[9] For the purposes of s226(4), there is no "proposed enterprise agreement" and none of the matters in that subsection are relevant to the application before me.

[10] Based on the materials that are before the Commission, including Mr Gilligan's declaration, the views of Swinburne University and the NTEU, I am satisfied that the Agreement does not, and is not likely to, cover any employees, and that the requirement of s.226(1)(b) is therefore met. I am satisfied that the termination of the Agreement is not contested.

[11] I find that it is appropriate in all the circumstances to approve the termination of the Agreement taking into account s.226 of the Act including the views of the employee organisation covered by the Agreement.

[12] Accordingly, the Agreement is now terminated. The termination will operate from 11 February 2026.

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