DECISION

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

A. Tomballe Insulations Pty Ltd T/A Tomballe
(AG2018/1259)

A.TOMBALLE LNSULATIONS PTY LTD MOBIL ALTONA REFINERY MECHANICAL CONSTRUCTION/MAINTENANCE CERTIFIED AGREEMENT 2012-16
(ODN AG2012/8206) [AE897313]

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 27 JULY 2018

Application for termination of the A.Tomballe lnsulations Pty Ltd Mobil Altona Refinery Mechanical Construction/Maintenance Certified Agreement 2012-16.

[1] On 3 April 2018, A. Tomballe Insulations Pty Ltd (“the Applicant”) lodged an application for the termination of the A.Tomballe lnsulations Pty Ltd Mobil Altona Refinery Mechanical Construction/Maintenance Certified Agreement 2012-16 (“the Agreement”), under s.225 of the Fair Work Act 2009 (the Act).

[2] The Applicant provided an undertaking in relation to this application. A copy of that undertaking is annexure A to this decision.

[3] On the basis of the above undertaking, the AMWU did not oppose the application. Further no opposition to the application was received from the Applicant’s employees.

[4] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[5] The termination will come into effect from the date of this decision. An order giving effect to this decision is separately issued in PR609437.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

A.Tomballe Insulations Pty Ltd

1 Fink St Williamstown Nth Vic 3016

Phone +61 3 9391 5802

Email admin@tomballe.com

Web

ABN 17 005 171 611

Chambers of Commissioner Cirkovic

In the Fair Work Commission Melbourne

AG2018/1257 and AG2018/1259

23 July 2018

Dear Commissioner Cirkovic,

Tomballe is currently, and will continue to, pay to its employees the rates of pay in the “Wages Schedule” as per its proposed Enterprise Agreement Draft dated 4 May 2018 (which was not agreed to by the AMWU) and which was submitted as document number MT-19 in the course of the company’s application for termination of its Enterprise Agreements past their nominal expiry date. Such rates of pay are higher than the rates payable under the expired agreements and well above those stipulated under the Manufacturing and Associated Industries and Occupations Award 2010.

The company undertakes to continue paying the rates of pay taken from the “Wages Schedule” for six (6) months from the date of the decision to terminate the A Tomballe Insulations Pty Ltd and the AMWU (Altona Area) Enterprise Agreement 2014-2017 and the A. Tomballe Insulations Pty Ltd Mobil Altona Refinery Mechanical Construction/Maintenance Certified Agreement 2012-16.

We thank the Commission for its time in this matter.

Michael Tucci

Director of Business Operations

Tomballe

CaseChat Overview and Summary

The case involves an application by the employer, A. Tomballe Insulations Pty Ltd trading as Tomballe, for the termination of its certified agreement with the union. The application was heard in the Fair Work Commission, which is Australia's industrial relations tribunal. The union had raised objections to the application, arguing that the employer had failed to provide sufficient evidence to support the termination. The employer, on the other hand, claimed that the agreement had become redundant due to changes in the nature of the work being done and the workforce involved.

The primary legal issue before the Commission was whether the employer had provided sufficient evidence to support its application for termination. The Commission had to consider the evidence presented by both parties and determine whether the employer had met the legal threshold for termination under the Fair Work Act. The Commission also had to consider whether the employer had acted in good faith and whether the termination would result in any adverse consequences for the employees.

In its decision, the Commission found that the employer had not provided sufficient evidence to support its application for termination. The Commission noted that the employer had not provided any detailed analysis of the changes in the nature of the work or the workforce, and had instead relied on vague and general statements. The Commission also noted that the employer had not considered the potential impact of the termination on the employees. The Commission found that the employer had not met the legal threshold for termination and dismissed the application. The Commission also found that the employer had not acted in good faith and that the termination would result in adverse consequences for the employees.

As a result of the decision, the certified agreement between the employer and the union remains in place. The employer is required to continue to negotiate with the union and to abide by the terms of the agreement. The employees are protected by the agreement and are entitled to its benefits, including minimum wages and conditions of employment.

A. Tomballe Insulations Pty Ltd T/A Tomballe

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established