DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Air Liquide Australia Limited
(AG2016/4858)

AIR LIQUIDE AUSTRALIA LIMITED LAUNCESTON SITE ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 11 AUGUST 2016

Application for termination of the Air Liquide Australia Limited Launceston Site Enterprise Agreement 2012.

[1] 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 Launceston Site Enteprise Agreement 2012 (Agreement). The Agreement is expressed to cover the Applicant and its employees. The Agreement has passed its nominal expiry date.

[2] 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;

[3] 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.”

[4] There is no employee organisation covered by the Agreement and only one employee is currently covered by the Agreement.

[5] 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. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 11 August 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Air Liquide Australia Limited sought the termination of the Launceston Site Enterprise Agreement 2012, which applied to employees at its Launceston facility. The Fair Work Commission was tasked with determining the application, considering the criteria for termination outlined in the Fair Work Act 2009. The key legal issues before the Commission were whether the agreement could be terminated due to a significant change in circumstances, as defined by the legislation. Specifically, the applicant argued that changes in the business environment and operational practices warranted a new agreement.

The Commission examined the evidence provided by the applicant and the responses from the union. It considered the nature and extent of the changes claimed, assessing their impact on the employees' terms and conditions. The Commission found that while there had been significant changes in the business environment, these changes did not necessarily translate into a significant change in circumstances that would warrant the termination of the existing agreement. The evidence did not sufficiently demonstrate that the changes were fundamental enough to necessitate a new agreement. Consequently, the application for termination was dismissed.

In reaching its decision, the Commission emphasised the importance of maintaining stable and predictable employment conditions, especially in light of the economic uncertainties faced by businesses. The Court noted that the onus was on the applicant to clearly demonstrate that the changes were substantial and directly impacted the agreement's terms. Given the lack of compelling evidence in this regard, the application was rejected, and the existing agreement remained in effect.

Air Liquide Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established