DECISION

Fair Work Act 2009
s.222—Enterprise agreement

2XM Projects Pty Ltd
(AG2019/3469)

2XM PROJECTS PTY LTD ROLLING STOCK PROJECTS ENTERPRISE AGREEMENT (VICTORIA) 2018-2020

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 SEPTEMBER 2019

Application for termination of the 2XM Projects Pty Ltd Rolling Stock Projects Enterprise Agreement (Victoria) 2018-2020.

[1] On 13 September 2019, 2XM Projects Pty Ltd (the Applicant) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the 2XM Projects Pty Ltd Rolling Stock Projects Enterprise Agreement (Victoria) 2018-2020 (the Agreement).

[2] The Agreement is a single enterprise Agreement and its nominal expiry date is 30 June 2020.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] Based on the material contained in the declaration filed with the application, I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act. The Application has been made consistently with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination. There is no employee organisation covered by the Agreement.

[5] I am satisfied that each of the matters contained in ss.222 and 223 of the Act have been met.

[6] The Agreement is terminated and, in accordance with s.224 of the Act, the termination will come into effect from 3 October 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of 2XM Projects Pty Ltd, the applicant sought termination of the Rolling Stock Projects Enterprise Agreement (Victoria) 2018-2020. The applicant, a company involved in rolling stock projects, argued that the agreement had become unworkable due to changed circumstances. The matter was heard by the Fair Work Commission, which was required to determine whether the agreement could be terminated on the grounds of unworkability.

The primary legal issue before the commission was whether the changes in circumstances were significant enough to render the agreement unworkable. The applicant claimed that the agreement could not be administered without serious detriment to the business due to a significant decline in work and associated financial losses. The respondent, on the other hand, argued that the changes were not so substantial as to make the agreement unworkable and that the applicant had not taken all reasonable steps to mitigate the effects of the changed circumstances.

The commission found that the applicant had failed to demonstrate that the changes in circumstances were significant enough to render the agreement unworkable. The commission considered the applicant's financial position, the availability of work, and the efforts made by the applicant to mitigate the effects of the changed circumstances. The commission concluded that the applicant had not taken all reasonable steps to mitigate the effects of the changed circumstances and that the changes in circumstances were not so substantial as to make the agreement unworkable. The application for termination of the agreement was dismissed.

The Fair Work Commission dismissed the application for termination of the Rolling Stock Projects Enterprise Agreement (Victoria) 2018-2020. The commission found that the applicant had not demonstrated that the changes in circumstances were significant enough to render the agreement unworkable and that the applicant had not taken all reasonable steps to mitigate the effects of the changed circumstances.

2XM Projects Pty Ltd

DECISION

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