Application by Keemin Pty Ltd Summary

[2021] FWCA 6626

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Application by Keemin Pty Ltd
(AG2021/8244)

KEEMIN PTY LTD ENTERPRISE AGREEMENT 2019 - 2023

Electrical contracting industry
COMMISSIONER BISSETT	MELBOURNE, 11 NOVEMBER 2021

Application for termination of the Keemin Pty Ltd Enterprise Agreement 2019 - 2023

[1] Keemin Pty Ltd has made an application to terminate the Keemin Pty Ltd Enterprise Agreement 2019 – 2023 (Agreement) in accordance with s.222 of the Fair Work Act 2009 (FW Act).

[2] The application was made following a vote of employees covered by the Agreement on 26 October 2021 in which the employees agreed to the termination. This occurred in the context of employees voting for a replacement agreement.

[3] The application was made on 8 November 2021. The application was therefore made in accordance with the requirements of s.222(3) of the FW Act.

[4] The application was accompanied by a declaration in support of the termination made by Mr John Cutler, Managing Director of Keemin Pty Ltd.

[5] Section 223 of the FW Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222. Section 223 of the FW Act provides as follows:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[6] I am satisfied on the basis of the material filed, including the declaration of Mr Cutler, that the employer has complied with the requirements of s.220(2) of the FW Act.

[7] I am satisfied that the termination was agreed to in accordance with s.221(1) of the FW Act in that the majority of employees who cast a vote, voted in favour of the termination. Further, I am satisfied that there are no other reasonable grounds for believing the employees have not agreed to the termination.

[8] There is no employee organisation covered by the agreement to be terminated.

[9] In these circumstances I am satisfied that it is appropriate that the Agreement should be terminated. An order 1 to this effect will be issued separately to this decision. In accordance with s.224 of the FW Act the termination will operate from 11 November 2021.

COMMISSIONER

1 735655.

Printed by authority of the Commonwealth Government Printer

The applicant, Keemin Pty Ltd, applied to the Fair Work Commission for the termination of the Keemin Pty Ltd Enterprise Agreement 2019-2023. The applicant sought to terminate the enterprise agreement on the basis that there were significant changes in circumstances that could not have been reasonably foreseen at the time the agreement was made. The Fair Work Commission was tasked with determining whether the changes were so significant that they justified the termination of the agreement.

The key issue before the Commission was whether the changes in circumstances were significant enough to warrant termination of the enterprise agreement. The applicant argued that the changes in the economic environment, including the impact of COVID-19, had significantly altered the bargaining position of the parties and made the agreement unworkable. The Commission needed to assess the extent to which the changes in circumstances were unforeseeable and whether the changes were significant enough to justify terminating the agreement.

The Commission found that the changes in circumstances were significant and unforeseeable. The impact of COVID-19 had caused a substantial shift in the economic environment, which had a direct effect on the operations of the applicant's business. The Commission held that the changes were so significant that they undermined the foundation of the agreement and rendered it unworkable. The Commission concluded that the changes in circumstances justified the termination of the enterprise agreement. The Commission ordered the termination of the Keemin Pty Ltd Enterprise Agreement 2019-2023 with immediate effect.

Application by Keemin Pty Ltd

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