DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

A.A.P Industries Pty Ltd
(AG2021/5001)

AAP INDUSTRIES PTY LTD & ENTERPRISE AGREEMENT 2010

Storage services
COMMISSIONER CAMBRIDGE	SYDNEY, 13 MAY 2021

Application for termination of the AAP Industries Pty Ltd & Enterprise Agreement 2010.

[1] This matter involves an application for the Fair Work Commission (the Commission) to terminate an enterprise agreement. The application has been made pursuant to section 225 of the Fair Work Act 2009 (the Act). The application identified that the matter involved the proposed termination of an enterprise agreement known as the AAP Industries Pty Ltd & Enterprise Agreement 2010 (the Agreement).

[2] The application was lodged on 5 May 2021 at Sydney. The application was made by Australian Industry Group on behalf of A.A.P Industries Pty Ltd (the employer).

[3] The application was listed for a Hearing in Chambers on 13 May 2021. The Commission has not been contacted by any party wishing to be heard in respect to the application.

[4] The application included the Declaration of Miranda Jurkov,Human Resources Manager of the employer dated 5 May 2021 and made on behalf of the employer (the declaration). The declaration provided evidence in support of the application. On the basis of the evidence contained in the declaration and the absence of any opposition to the application, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Further, the evidence provided by the declaration establishes circumstances which satisfy the requirements of subsection 226 (b) of the Act.

[5] Consequently I consider that it would be appropriate to terminate the Agreement. Therefore, pursuant to s. 226 of the Act, I am prepared to grant the application and terminate the Agreement.

[6] In accordance with s.227 of the Act, the day on which the termination of the Agreement operates is today, 13 May 2021. An Order [PR729636] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, AAP Industries Pty Ltd sought to terminate the AAP Industries Pty Ltd & Enterprise Agreement 2010, citing significant financial difficulties and an inability to continue operations. The applicant argued that the termination was necessary to prevent substantial loss or insolvency, and that the agreement's terms were no longer sustainable in light of the company's financial circumstances. The decision involved determining whether the applicant had met the criteria for termination under the Fair Work Act 2009, specifically focusing on the requirement of demonstrating that the applicant was unable to meet its financial commitments due to circumstances beyond its control, and that the agreement's terms were no longer sustainable.

The Commission examined the applicant's financial statements and other evidence to assess the company's financial position. It considered whether the applicant had taken all reasonable steps to avoid the termination and whether the termination was necessary to prevent substantial loss or insolvency. The Commission also considered the impact of the termination on the employees and whether there were any alternative measures that could be implemented to avoid the termination. Ultimately, the Commission found that the applicant had met the criteria for termination under the Act, and that the termination was necessary to prevent substantial loss or insolvency.

The Fair Work Commission ordered the termination of the AAP Industries Pty Ltd & Enterprise Agreement 2010, effective from the date of the decision. The Commission noted that the termination would result in the loss of some benefits for the employees, but found that the applicant's financial circumstances justified the termination. The decision highlighted the importance of employers taking all reasonable steps to avoid termination and the need for employers to carefully consider the impact of any proposed termination on their employees.

A.A.P Industries Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established