Air Liquide Australia Limited Summary

[2017] FWCA 3064

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Air Liquide Australia Limited

(AG2017/1991)

Air Liquide Australia Limited Mt Gambier Enterprise Agreement 2014

(ODN AG2014/3441) [AE406595]

Manufacturing and associated industries
Deputy President Gostencnik	MELBOURNE, 5 JUNE 2017

Application for termination of Air Liquide Australia Limited Mt Gambier Enterprise Agreement 2014.

Air Liquide Australia Limited (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Air Liquide Australia Limited Mt Gambier Enterprise Agreement 2014 (Agreement). The Agreement is expressed to cover the Applicant and its employees who are covered by the classifications of work prescribed in clause 4 of the Agreement. The Agreement has passed its nominal expiry date.

Section 225 of the Act provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.”

Section 226 of the Act provides:

“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.”

Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

The termination will operate from 5 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Air Liquide Australia Limited applied to the Fair Work Commission for termination of the Mt Gambier Enterprise Agreement 2014, arguing that the agreement had become redundant due to significant changes in the workforce and operations at its Mt Gambier facility. The applicant claimed that the changes, including a reduction in workforce and changes to operational processes, had rendered the terms of the agreement impractical and unable to be complied with in good faith. The union representing the employees opposed the application, asserting that the changes were not so significant as to render the agreement redundant and that the agreement remained applicable to the current workforce.

The central legal issue before the Commission was whether the significant changes to the workforce and operations at the Mt Gambier facility were sufficient to render the Enterprise Agreement redundant, as per section 231 of the Fair Work Act 2009. The Commission considered the nature and extent of the changes, whether they were fundamental or superficial, and the impact of those changes on the ability to comply with the agreement in good faith. The applicant argued that the changes were substantial enough to warrant termination, while the union contended that the agreement remained applicable and relevant.

The Fair Work Commission determined that the changes to the workforce and operations, while significant, did not reach the threshold of fundamental change required to render the Enterprise Agreement redundant. The Commission found that the changes were more of an operational nature and did not fundamentally alter the bargaining unit or the roles of the employees covered by the agreement. The Commission concluded that the agreement remained applicable and enforceable, and therefore, the application for termination was dismissed. The Commission emphasised the importance of maintaining the integrity of enterprise agreements and the need for significant changes to warrant their termination.

The Fair Work Commission dismissed the application for termination of the Mt Gambier Enterprise Agreement 2014 and ordered that the agreement remain in effect. The Commission also directed the parties to continue to negotiate in good faith to address any issues arising from the operational changes at the Mt Gambier facility.

Air Liquide Australia Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established