1 Fair Work Act 2009 s.225 - Application for termination of an enterprise agreement after its nominal expiry date PBE Rutherford Mining Pty Ltd (AG2024/4180) DEPUTY PRESIDENT SLEVIN COMMISSIONER MCKINNON COMMISSIONER SLOAN SYDNEY, 18 FEBRUARY 2025 Application to terminate the PBE Rutherford Mining Pty Ltd Enterprise Agreement 2021 [1] PBE Rutherford Mining Pty Ltd (Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) (Application) to terminate the PBE Rutherford Mining Pty Ltd Enterprise Agreement 2021 (Agreement). [2] The Agreement is a single enterprise agreement. It was approved by Deputy President Boyce on 6 January 20221. [3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), is covered by the Agreement. [4] The CEPU opposes the application. [5] Section 225 permits an employer, employee or registered organisation covered by an enterprise agreement to apply for the termination of the agreement after its nominal expiry date. If an application is made pursuant to s.225 of the Act, the Commission must terminate the enterprise agreement pursuant to s.226(1) if satisfied that one of three circumstances apply: (a) the continued operation of the agreement would be unfair for the employees covered by it (s. 226(1)(a)), or (b) the agreement does not and is not likely to cover any employees (s. 226(1)(b), or (c) the continued operation of the agreement threatens the viability of the business carried on by the employer covered by the agreement and terminating the agreement will reduce the potential for job losses and the employer gives an undertaking as to termination entitlement (s. 226(1)(c)). [6] The Commission must only terminate an agreement under s. 226(1) if satisfied that it is appropriate to do so (s. 226(1A). 1 Application by PBE Rutherford Mining Pty Ltd [2022] FWCA 27 2025 FWC 487 DECISION 2025 FWC 487 2 [7] In deciding whether to terminate the agreement the Commission must take into account the views of the employees, the employer and any employee organisation covered by the agreement (s. 226(3)). [8] Section 226(4) provides that when considering whether to terminate an agreement the Commission must consider whether the application was made before or after the notification time for a proposed agreement to replace the agreement, whether bargaining for a proposed agreement is occurring, and whether the termination of the agreement would adversely affect the bargaining position of employees covered by the proposed agreement. [9] The Applicant is covered by the Agreement. The Agreement expired on 16 September 2024. The Application was made on 24 October 2024. The declaration accompanying the application stated that the grounds for the application were that the Agreement did not provide ongoing wage increases and no employees were covered by it. The matter was listed before the Commission on 7 November 2024. The Applicant appeared and agreed to provide further material in support of the application. The CEPU did not appear. On 10 November 2024 Ms Skinner, PBE’s Human Resources Manager, provided a further declaration in support of the application. The CEPU notified its objection to the application on 11 November 2024. The Applicant was given the opportunity to provide any material in reply to the CEPU objection. Nothing was provided. [10] Ms Skinner’s further declaration states that on 24 October 2024 the Application and supporting declaration were provided to each of the 13 employees covered by the Agreement by email. It was also placed on the employee noticeboards in the workplace. Ms Skinner attests that on 25 October 2024 she also spoke to Gary Faulkner who is an employee who had been a bargaining representative for the Agreement. Ms Skinner invited Mr Faulkner to provide the Commission with material on behalf of employees supporting the Application. We note that nothing was received. Ms Skinner states that in June 2023 employees covered by the Agreement negotiated individual arrangements providing for increases to wages and allowances in excess of those provided for in the Agreement. Ms Skinner states that a further increase in excess of the Agreement was negotiated which took effect in April 2024. She states there are no negotiations occurring for a new enterprise agreement. [11] The CEPU opposes the application on the basis that none of the prerequisites for termination in s. 226(1) are met. First, it contends that there is nothing before the Commission to suggest the continued operation of the Agreement will be unfair for employees. The only matter suggesting unfairness is that the Agreement does not provide for regular wage increases. The CEPU contends that as the wage rates in the Agreement are not a ceiling this is irrelevant to the question of unfairness as the Applicant is free to pay in excess of the Agreement. The CEPU points to the fact that the Applicant is paying in excess of the Agreement, demonstrating that the Agreement is not working unfairly for employees in the manner contended. Consequently, the requirement in s. 226(1)(a) is not met. As to the requirement in s. 226(1)(b) the CEPU contends that it is clear from the material filed that 13 employees are still covered by the Agreement and so the Commission cannot be satisfied that the Agreement does not and is not likely to cover any employees. 2025 FWC 487 3 [12] We agree with the contentions of the CEPU. There is nothing in the material filed that suggests the Agreement is operating unfairly and so s. 226(1)(a) is not met. Further, the Applicant’s material makes it clear that the Agreement continues to cover the employees, albeit that individual arrangements have been entered into for payments above the rates in the Agreement. Therefore, the requirement in s. 226(1)(b) is not met. The Applicant does not contend that s. 226(1)(c) applies. [13] As none of the relevant requirements in s. 226(1) are met the Commission cannot terminate the Agreement. [14] The Application is dismissed. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR784475>