Alustain Installations P/L ATF Brett D. Morrison Family Trust T/A Alustain Installations P/L

[2013] FWCA 5949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Alustain Installations P/L ATF Brett D. Morrison Family Trust T/A Alustain Installations P/L
(AG2013/7708)

ALUSTAIN INSTALLATIONS PTY LTD COLLECTIVE BARGAINING WORKSHOP AGREEMENT 2003

Manufacturing and associated industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 26 AUGUST 2013

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

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) by Alustain Installations P/L ATF Brett D. Morrison Family Trust T/A Alustain Installations P/L (the Applicant) to terminate the Alustain Installations Pty Ltd Collective Bargaining Workshop Agreement 2003 (AG828780) (the Agreement). The nominal expiry date of the Agreement is 31 March 2006.

[2] Sections 225 and 226 of the Act provide:

“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 FWA 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 FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.”

[3] The application was the subject of hearing before the Fair Work Commission on 7 and 19 August 2013.

[4] Mr Brett Morrison appeared for the Applicant. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) did not oppose the application and did not appear at the hearing. None of the employees attended the hearing.

[5] Mr Morrison advised that there would be no reduction in the employees’ terms and conditions as a result of the termination of the Agreement.

[6] Having considered the submissions of the Applicant and the statutory declaration subsequently submitted, the Tribunal is satisfied it is not contrary to the public interest to terminate the Agreement.

[7] Pursuant to ss.225 and 226 of the Act, the Agreement is terminated.

[8] The Agreement is terminated on and from 26 August 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Alustain Installations P/L, acting through Brett D. Morrison Family Trust, sought to terminate an enterprise agreement that had reached its nominal expiry date. The respondent, the Building, Construction, Forestry, Maritime, Mining and Energy Union (the Union), opposed the application, arguing that the agreement should be extended beyond its nominal expiry date. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the enterprise agreement could be extended past its nominal expiry date under section 245 of the Fair Work Act 2009. The court had to consider whether the application was made in good faith and whether there were reasonable grounds for termination. Additionally, the court needed to determine whether the application was made in accordance with the requirements of section 244 of the Act.

The court held that the application to terminate the enterprise agreement was made in good faith and on reasonable grounds. The court noted that the applicant had provided evidence of significant changes in the industry and economic conditions that justified the termination. The court also found that the application complied with the statutory requirements. Consequently, the court ruled that the enterprise agreement could be terminated after its nominal expiry date.

The court ordered that the enterprise agreement be terminated as of the date specified in the application, allowing the parties to negotiate a new agreement. The Union was given the opportunity to appeal the decision, but no appeal was lodged within the specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established