After its nominal expiry date

See Fair Work Act 2009 s.225

If an enterprise agreement has passed its nominal expiry date, any of the following may apply for the termination of the agreement:

• one or more of the employers covered by the agreement
• an employee covered by the agreement, or

a union covered by the agreement.

An application for termination of an enterprise agreement after the nominal expiry date must be made with a Form F24B.

Material to accompany the application

The application must be accompanied by a completed and sworn statutory declaration from the applicant.[1] [Form F24C]

The statutory declaration must be completed truthfully. Under s.11 of the Statutory Declarations Act 1959 (Cth), a person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of 4 years.[2]

Links to forms

• Form F24B – Application for termination of an enterprise agreement after the nominal expiry date
• Form F24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date

All forms are available on the Forms page of the Fair Work Commission's website.

See Fair Work Act s.226

If an application is made for termination of an enterprise agreement after its nominal expiry date, the Commission must terminate the agreement if:

• satisfied that it is not contrary to the public interest to do so, and
• the Commission considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
  • the views of the employees, each employer, and each union (if any), covered by the agreement, and
  • the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

See Fair Work Act s.227

If an enterprise agreement is terminated by the Commission, the termination operates from the day specified in the decision to terminate the agreement.

Termination of enterprise agreements

When the Commission must terminate an enterprise agreement

Re Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 (Watson VP, Gostencnik DP, Spencer C, 22 April 2015).

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd [2015] FCAFC 126 (3 September 2015).

Aurizon applied to the Commission to terminate 14 enterprise agreements that had passed their nominal expiry dates. By the time the matter reached hearing, two of the agreements had been replaced by new agreements and the application was only pressed in relation to the remaining 12.

The construction and application of s.226 was considered. Firstly, in relation to s.226(a) the Full Bench held that a consideration of the public interest would involve something distinct from the interests of the persons and bodies covered by the agreement. The Full Bench applied the decision in Kellog Brown.

In this case the parties had been engaged in bargaining for several months without reaching an agreement. The union parties submitted that terminating the agreements would undermine the bargaining process and deliver an advantage to Aurizon in the negotiations. The Full Bench held that there was nothing inherently inconsistent with the termination of an enterprise agreement that had passed its nominal expiry date and the continuation of collective bargaining in good faith.

In considering the requirements of s.226(b) the Full Bench acknowledged that the application had been made in the context of a bargaining stalemate. The agreements subject to the application had a particular history due to directions issued to Aurizon from its previous owner, the Queensland Government. The particular clauses included an employment guarantee which had also expired and other clauses relating to work practices which affected Aurizon’s ability to effectively manage the business. One result of the termination of the agreements would be that 69 employees who did not have a productive role within the organisation would have their employment terminated.

The union parties submitted that the employees covered by the agreements opposed the termination of those agreements because it would result in a reduction in the terms and conditions of their employment. The Full Bench was not persuaded by this submission holding that the Fair Work Act did not guarantee the terms and conditions contained in a nominally expired agreement. Ultimately, the Full Bench held that it could not be expected that an enterprise agreement that had passed its nominal expiry date would continue to apply unaltered in perpetuity.

The Full Bench was satisfied that it was appropriate to terminate each of the 12 enterprise agreements.

The union parties then made an application for judicial review to the Federal Court. A Full Court of the Federal Court found no error in the decision of the Commission and dismissed the application.