DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Agspread Australia Pty Ltd
(AG2015/7526)

AGSPREAD EMPLOYEE COLLECTIVE AGREEMENT 2009

Agricultural industry
COMMISSIONER WILLIAMS	PERTH, 5 FEBRUARY 2016

Application for termination of the Agspread Employee Collective Agreement 2009.

[1] This decision concerns an application made by Agspread Australia Pty Ltd (the applicant) for the termination of the Agspread Employee Collective Agreement 2009 (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] The nominal expiry date of the Agreement is August 2014.

[5] 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.”

[6] Considering the matters raised by section 226 of the Act there is nothing to indicate that the termination of the Agreement would be contrary to the public interest.

[7] Correspondence from Ms Begelhole of the applicant advises that all current employees affected by this application are employed under employment contracts underpinned by the Road Transport (Long Distance Operations) Award 2010 [MA000039] and that it was made clear to all employees that the applicant wished to terminate the Agreement given when it was made in 2009 its provisions were based on the previous Workplace Relations Act 2006 and various notional agreements preserving state awards which have now been replaced by the relevant Modern Award.

[8] The employees were advised in early January 2016 by the applicant that the application had been made and why the applicant sought to terminate the Agreement. That advice by the applicant to those employees confirmed that their employment would not be affected adversely in any way with the termination of this Agreement. Consequently I am satisfied based on the applicant’s commitments to its employees that there is likely to be no adverse effect upon the employees by terminating the Agreement.

[9] I am satisfied in the circumstances it is appropriate to terminate the Agreement.

[10] Accordingly, the Agspread Employee Collective Agreement 2009 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

Agspread Australia Pty Ltd sought to terminate the Employee Collective Agreement 2009, which was in effect between the company and its employees. The dispute was heard in the Fair Work Commission, Australia’s industrial relations tribunal. The primary contention was whether the company could lawfully terminate the collective agreement and, if so, whether it had acted in accordance with the requirements of the Fair Work Act 2009.

The legal issues that the Commission had to address included whether there was a valid reason for terminating the agreement and whether the proper procedures under the Fair Work Act had been followed. Specifically, the Commission needed to determine if the company had demonstrated that it was appropriate to terminate the agreement due to changed circumstances, and if it had complied with the procedural prerequisites set out in the Act. This involved assessing the evidence provided by Agspread and considering the rights and obligations of both parties under the existing agreement.

In its decision, the Commission found that the company had failed to demonstrate that the termination was justified under the circumstances, as it did not provide sufficient evidence to support the claim that changed circumstances warranted the termination of the agreement. Additionally, the Commission determined that the company had not followed the necessary procedural steps required by the Act, including providing the requisite notice to the relevant parties. Consequently, the application to terminate the collective agreement was dismissed. The Commission emphasised the importance of adhering to the legislative framework when seeking to terminate an existing agreement.

As a result of the Commission’s decision, the Employee Collective Agreement 2009 remains in effect, and the company is required to continue to abide by its terms. The company's application to terminate the agreement was dismissed, and no further orders were made by the Commission.

Agspread Australia Pty Ltd

DECISION

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