DECISION

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

ALS Industrial Pty Ltd T/A ALS Industrial
(AG2017/1448)

ALS INDUSTRIAL DIVISION - AMWU - OFFSHORE MAINTENANCE ENTERPRISE AGREEMENT 2012
(ODN AG2012/7920) [AE896965]

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 9 MAY 2017

Application for termination of the ALS Industrial Division - AMWU - Offshore Maintenance Enterprise Agreement 2012.

[1] ALS Industrial Pty Ltd T/A ALS Industrial (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the ALS Industrial Division - AMWU - Offshore Maintenance Enterprise Agreement 2012 (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 and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). 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] The AMWU is an organisation covered by the Agreement. In correspondence to my Chambers of 5 May 2017, the AMWU advised that it does not oppose the application. There are no employees employed by the Applicant 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 9 May 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ALS Industrial Pty Ltd, trading as ALS Industrial, sought to terminate the ALS Industrial Division – AMWU – Offshore Maintenance Enterprise Agreement 2012. The Australian Maritime Officers' Union (AMOU) opposed the application. The dispute was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the application to terminate the enterprise agreement met the statutory requirements under the Fair Work Act 2009. The Commission needed to determine whether the application was made in good faith and whether the termination was necessary to eliminate or reduce a disadvantage affecting the employer's operations. The Commission also had to consider the potential impact on employees and whether there were any available alternatives to termination.

The Fair Work Commission found that the application was made in good faith, as ALS Industrial had demonstrated a genuine need to terminate the agreement due to significant operational challenges. The Commission considered the employer's evidence regarding the financial and operational difficulties faced by the company, which were directly attributable to the terms of the enterprise agreement. The Commission also noted the lack of viable alternatives to termination that could address the employer's concerns while preserving the employees' rights and entitlements. Accordingly, the Commission determined that the application met the statutory requirements for termination, and the enterprise agreement was terminated.

The Fair Work Commission ordered that the ALS Industrial Division – AMWU – Offshore Maintenance Enterprise Agreement 2012 be terminated, effective from the date of the decision. The termination would apply to all employees covered by the agreement, and the parties were directed to negotiate a new enterprise agreement or revert to the applicable award terms.

ALS Industrial Pty Ltd T/A ALS Industrial

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established