Fair Work Act 2009

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or

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

all of the following apply:

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;

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;

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.

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.

This subsection covers a termination of the employment of an employee:

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

because of the insolvency or bankruptcy of the employer.

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

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

each employer;

each employee organisation (if any).

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)).

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

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

whether bargaining for the proposed enterprise agreement is occurring; and

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.

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