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
(AG2018/1257)

A TOMBALLE INSULATIONS PTY LTD AND THE AMWU (ALTONA AREA) ENTERPRISE AGREEMENT 2014-2017
(ODN AG2014/9638) [AE410852]

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 26 JULY 2018

Application for termination of the A Tomballe Insulations Pty Ltd and the AMWU (Altona Area) Enterprise Agreement 2014-2017.

[1] On 3 April 2018, A. Tomballe Insulations Pty Ltd (“the Applicant”) lodged an application for the termination of the A Tomballe Insulations Pty Ltd and the AMWU (Altona Area) Enterprise Agreement 2014-2017 (“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 PR609417.

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

In the Fair Work Commission, Tomballe Insulations Pty Ltd T/A Tomballe applied for the termination of the AMWU (Altona Area) Enterprise Agreement 2014-2017. The Australian Manufacturing Workers' Union opposed the application. Tomballe Insulations Pty Ltd, trading as Tomballe, sought the termination of the enterprise agreement on the basis that it had ceased operations and, consequently, had no employees covered by the agreement. The company argued that, without employees, it could not meet its obligations under the agreement and that the agreement was therefore no longer relevant.

The legal issues before the Commission were whether Tomballe Insulations Pty Ltd had genuinely ceased operations and whether the termination of the enterprise agreement was justified in the circumstances. The Commission had to consider whether the company's cessation of operations was genuine and not a mere tactic to avoid the obligations of the agreement. Additionally, the Commission needed to assess whether the termination of the agreement would be in the best interests of the employees and the union, considering the company's cessation of operations.

The Commission found that Tomballe Insulations Pty Ltd had genuinely ceased operations and, as a result, had no employees covered by the enterprise agreement. The company's cessation of operations was deemed genuine, as evidenced by the lack of any ongoing business activities. Given that there were no employees to whom the agreement applied, the Commission determined that the agreement was no longer relevant and that terminating the agreement was appropriate. The Commission also considered the interests of the employees and the union, concluding that terminating the agreement was in their best interests given the circumstances.

Accordingly, the Fair Work Commission terminated the AMWU (Altona Area) Enterprise Agreement 2014-2017, effective from the date of the decision.

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