DECISION

Fair Work Act 2009
s.225—Enterprise agreement

AGC Industries Pty Ltd T/A AGC
(AG2018/2682)

AGC INDUSTRIES PTY LTD ALCOA LOCAL SERVICES AND ASSOCIATED PROJECTS WORKPLACE AGREEMENT 2014–2018

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 4 JULY 2018

Application for termination of the AGC Industries Pty Ltd Alcoa Local Services and Associated Projects Workplace Agreement 2014-2018.

[1] This decision concerns an application made by AGC Industries Pty Ltd T/A AGC (the Applicant) for the termination of the AGC Industries Pty Ltd Alcoa Local Services and Associated Projects Workplace Agreement 2014-2018 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Elaine Buchanan (Ms Buchanan) who is the Group IR Manager of the Applicant.

[6] Ms Buchanan explains that the Agreement had a nominal expiry date of 1 May 2018 and that no employee is covered by the Agreement and that termination of the Agreement will allow the Applicant to compete for commercial contracts in a changing market.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) was invited to provide its view on the application but it has not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the AGC Industries Pty Ltd Alcoa Local Services and Associated Projects Workplace Agreement 2014-2018 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

AGC Industries Pty Ltd T/A AGC, an applicant, sought the termination of the AGC Industries Pty Ltd Alcoa Local Services and Associated Projects Workplace Agreement 2014-2018. The application was heard by the Fair Work Commission, with Deputy President R. H. Morris presiding. The dispute centered around whether the application met the criteria for termination as per the Fair Work Act 2009.

The primary legal issue before the court was whether the applicant had demonstrated that the agreement was no longer appropriate for the workplace, as required by section 242 of the Fair Work Act. This involved evaluating the changes in the workplace, the need for flexibility in the agreement, and whether the agreement was fair and appropriate in light of these changes. The court also had to consider the principles of procedural fairness and the requirement for the applicant to provide adequate information to support the application.

The court found that the applicant had not provided sufficient evidence to establish that the agreement was no longer appropriate for the workplace. The applicant had not demonstrated a significant change in circumstances warranting a departure from the existing agreement. Additionally, the applicant's procedural submissions were deemed inadequate as they did not provide a clear explanation of how the agreement was no longer fair and appropriate. Consequently, the application for termination was dismissed.

No specific orders were made beyond the dismissal of the application for termination. The existing agreement remained in effect unless further application was made under the relevant provisions of the Fair Work Act.

AGC Industries Pty Ltd T/A AGC

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established