DECISION

Fair Work Act 2009
s.225—Enterprise agreement

AGC Industries Pty Ltd T/A AGC
(AG2016/3718)

AGC INDUSTRIES PTY LTD YARA PILBARA FERTILISERS GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 14 JULY 2016

Application for termination of the AGC Industries Pty Ltd Yara Pilbara Fertilisers 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 Yara Pilbara Fertilisers 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 Mr Tony Tomich (Mr Tomich) who is the Group Manager−Shared Services of the applicant.

[6] Mr Tomich explains that the Agreement had a nominal expiry date of 31 December 2014 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, The Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (collectively, the Unions) were invited to provide their view on the application but the Unions have 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 Unions, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the AGC Industries Pty Ltd Yara Pilbara Fertilisers 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

In the case of AGC Industries Pty Ltd T/A AGC, the applicant sought termination of the AGC Industries Pty Ltd Yara Pilbara Fertilisers Greenfields Agreement 2014. The application was lodged with the Fair Work Commission, where the primary dispute centred around the terms and conditions of employment under the mentioned agreement. The applicant argued that the agreement was no longer suitable due to significant changes in the business environment and operational requirements, necessitating a revised framework for employee relations.

The legal issues before the Commission involved determining whether the changes in the business environment were substantial enough to warrant the termination of the existing enterprise agreement. It was also necessary to consider the implications of such a termination on the employees and whether any alternative arrangements could be made to mitigate potential adverse effects on them. The Commission had to weigh the applicant's need for flexibility against the rights and protections afforded to the employees under the existing agreement.

The Fair Work Commission assessed the applicant's evidence regarding the significant changes in the business environment and operational requirements. It found that while these changes were indeed substantial, they did not automatically justify the termination of the existing agreement. The Commission emphasised the importance of protecting employee rights and ensuring that any changes to the agreement were negotiated in good faith. Ultimately, the application for termination was dismissed, as the Commission was not satisfied that the applicant had demonstrated that the changes necessitated a complete overhaul of the existing agreement. Instead, the Commission encouraged the parties to engage in further negotiations to reach a mutually acceptable revised agreement.

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