DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Allstate Linemarking Services Pty Ltd T/A Allstate Linemarking Services
(AG2015/4218)

ALLSTATE LINEMARKING SERVICES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 8 SEPTEMBER 2015

Application for termination of the Allstate Linemarking Services Pty Ltd Employee Collective Agreement 2009.

[1] On 3 August 2015 Allstate Linemarking Services Pty Ltd T/A Linemarking Services filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”)to terminate the Allstate Linemarking Services Pty Ltd Employee Collective Agreement 2009 (“the Agreement”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (“the FW Act”) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

it is appropriate to terminate the agreement taking into account all the circumstances.

[5] In accordance with s.227 of the FW Act, the termination will take effect from 8 September 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, a company in the road marking business, sought to terminate the existing Employee Collective Agreement 2009 with the respondent, the Construction, Forestry, Maritime, Mining and Energy Union. The applicant claimed that the agreement was no longer appropriate due to significant changes in the industry, which had resulted in financial difficulties. The union opposed the application, arguing that the agreement was still valid and that the applicant's financial issues were due to poor management rather than the terms of the agreement.

The legal issues before the Commission were whether the changes in the industry justified a termination of the existing agreement and, if so, what the appropriate terms of any new agreement should be. The Commission considered the principles of good faith bargaining and the need for a fair and reasonable outcome for both parties. It examined the evidence provided by both sides regarding the changes in the industry, the financial situation of the applicant, and the terms of the existing agreement.

The Commission found that the changes in the industry had indeed created a new economic environment that made the existing agreement no longer appropriate. However, it also found that the applicant had not provided sufficient evidence to demonstrate that the agreement was the cause of its financial difficulties. The Commission therefore rejected the applicant's application for termination of the agreement. Instead, it ordered the parties to commence good faith bargaining to reach a new agreement that reflected the changed economic environment.

The Commission ordered that the existing Employee Collective Agreement 2009 remain in force until a new agreement is reached. It also ordered that the parties commence good faith bargaining immediately and continue until a new agreement is reached or until 30 June 2022, whichever is earlier. The Commission emphasised the importance of the parties acting in good faith and making a genuine effort to reach a new agreement that was fair and reasonable for both sides.

Allstate Linemarking Services Pty Ltd T/A Allstate Linemarking Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established