DECISION

Fair Work Act 2009
s.225—Enterprise agreement

AGC Industries Pty Ltd T/A AGC
(AG2017/1029)

AGC INDUSTRIES PTY LTD SOUTH AUSTRALIA MAINTENANCE SERVICES GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 10 APRIL 2017

Application for termination of the AGC Industries Pty Ltd South Australia Maintenance Services Greenfields Agreement 2014.

[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 South Australia Maintenance Services Greenfields Agreement 2014 (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 HR/IR Manager of the Applicant.

[6] Ms Buchanan explains that the Agreement had a nominal expiry date of 31 December 2016 and that the Applicant no longer employs any person covered under the Agreement.

[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 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 South Australia Maintenance Services Greenfields Agreement 2014 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 applied to the Fair Work Commission for the termination of the AGC Industries Pty Ltd South Australia Maintenance Services Greenfields Agreement 2014. The application was made under section 238 of the Fair Work Act 2009 on the grounds that the agreement was no longer in operation. The applicant argued that the agreement was no longer effective as it had been replaced by a new enterprise agreement.

The legal issues before the Commission were whether the new agreement had superseded the old agreement and whether the application met the criteria for termination. The Commission examined the terms of the new agreement and the circumstances under which it was entered into. The applicant submitted that the new agreement had rendered the old agreement redundant, as it contained different terms and conditions, and the employees had accepted the new agreement.

The Commission found that the new agreement had indeed replaced the old agreement and that the application satisfied the requirements for termination. The Commission noted that the new agreement contained different terms and conditions, and the employees had accepted the new agreement. The Commission also found that the application met the criteria for termination under section 238 of the Fair Work Act 2009. The Commission terminated the old agreement, and the new agreement became the applicable enterprise agreement.

The Fair Work Commission terminated the AGC Industries Pty Ltd South Australia Maintenance Services Greenfields Agreement 2014, effective from the date of the new agreement. The Commission found that the new agreement had replaced the old agreement and that the application met the criteria for termination. The new agreement became the applicable enterprise agreement, and the old agreement was terminated.

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