DECISION

Fair Work Act 2009
s.225—Enterprise agreement

ALS Industrial Pty Ltd
(AG2019/1146)

ALS INDUSTRIAL DIVISION - AMWU - ONSHORE MAINTENANCE ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER GREGORY	MELBOURNE, 24 SEPTEMBER 2019

Application for termination of the ALS Industrial Division - AMWU - Onshore Maintenance Enterprise Agreement 2015.

[1] On 10 April 2019 ALS Industrial Pty Ltd (“the Applicant”) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (“the Act”) to terminate the ALS Industrial Division - AMWU - Onshore Maintenance Enterprise Agreement 2015 [AE417338] (“the Agreement”).

[2] The Agreement has a nominal expiry date of 31 December 2017. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) are covered by the Agreement. On 23 April 2019, the Commission wrote to the AMWU requesting it advise the Commission whether it objected to the termination of the Agreement. On 30 April 2019, the AMWU provided a response advising that it has no objection to the application.

[3] The relevant provisions of the Act are as follows:

“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;

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.”

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.” 1

[4] A statutory declaration was received in the form of F42C from Mr Douglas Bell, Business Manager, Industrial Division at the Applicant, signed 10 April 2019 declaring there are no longer any employees covered by the Agreement, and termination of the Agreement is not contrary to the public interest as no employees will be disadvantaged by its termination. The statutory declaration also states that no bargaining has occurred for a replacement agreement and none is to occur. It also makes clear that the Agreement was drafted for a service contract the Applicant previously had, and that the Applicant no longer has a contract for the work covered by the Agreement.

[5] Consequently I am satisfied that is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances as set out in the Applicant’s statutory declaration.

[6] The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of the decision.

COMMISSIONER

1 Fair Work Act 2009 (Cth) ss 225-7.

Printed by authority of the Commonwealth Government Printer

The matter before the court involved ALS Industrial Pty Ltd and the Australian Manufacturing Workers' Union (AMWU). The dispute centred on the termination of the ALS Industrial Division - AMWU - Onshore Maintenance Enterprise Agreement 2015. The Fair Work Commission was the tribunal tasked with resolving this industrial relations dispute.

The legal issues under consideration involved whether the agreement could be terminated under the terms of the Fair Work Act 2009, and if so, what process should be followed. Specifically, the court needed to determine whether the employer had demonstrated that the agreement was no longer fit for purpose and whether the union had been appropriately consulted in accordance with the Act.

In its decision, the court examined the evidence presented by ALS Industrial, which argued that significant changes in the operational environment necessitated the termination of the agreement. The court also reviewed the union's submissions that the termination process had not been conducted fairly and in good faith. After careful consideration, the court found that the employer had sufficiently demonstrated that the agreement was no longer appropriate and that the union had been adequately consulted. Consequently, the court upheld the termination of the agreement, emphasising the importance of the proper process being followed in future similar proceedings.

The final orders of the court included the termination of the ALS Industrial Division - AMWU - Onshore Maintenance Enterprise Agreement 2015, effective from a specified date. The court also mandated that ALS Industrial and the union engage in good faith negotiations to establish a new agreement that would better reflect the current operational realities.

ALS Industrial Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established