[2021] FWC 4437

The attached document replaces the document previously issued with the code [2021] FWCA 3978 to correct document referencing.

Associate to Commissioner Lee.

Dated 23 July 2021.

[2021] FWC 4437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Armor Safety Pty Ltd
(AG2020/3056)

COMMISSIONER LEE

MELBOURNE, 22 JULY 2021

Application for termination of the Armor Safety PTY LTD & The Australian Workers’ Union Agreement 2019.

[1] On 19 October 2020, Armor Safety Pty Ltd made an application under s.222 of the Fair Work Act 2009 (the Act) seeking that the Fair Work Commission (the Commission) terminate the Armor Safety PTY LTD & The Australian Workers’ Union Agreement 2019 (the Agreement). 1

[2] The Agreement is a single enterprise agreement. It was approved by Commissioner Cirkovic on 17 September 2019. The nominal expiry date of the Agreement is 28 February 2022.

History of the application

[3] The application was lodged on 19 October 2020. The Australian Workers’ Union (AWU) was a bargaining representative and is covered by the Agreement. My chambers wrote to the AWU seeking their views on the application. The AWU indicated that it opposed the termination of the Agreement and sought to be heard.

[4] Directions were set for the filing of material by the AWU setting out the basis of its objection, and by the Applicant in reply. The matter was listed for hearing on 14 December 2020.

[5] A request for an adjournment was subsequently made by the Applicant on the grounds that an application had been made to the Federal Court to quash the decision approving the Agreement. The AWU supported the granting of the adjournment. The adjournment was granted. The matter was also scheduled for report back conference on 8 February 2021.

[6] During the report back conference, the matter was programmed for hearing on 9 April 2021, and the parties also agreed to further directions for the filing of further material by both the Applicant and the AWU.

[7] During the hearing on 9 April 2021, I raised with parties the Full Bench decision in Appeal by Shop, Distributive and Allied Employees Association and Others against decision [2019] FWC 6105. 2 The parties indicated that they had not had the opportunity to review the decision and consider the potential relevance of the decision to the current proceedings. Accordingly, I agreed to provide parties with an opportunity to make further submissions and provide further evidence on the issue of which casual employees were entitled to vote for the termination of the Agreement. I issued further directions for the filing of material by both the Applicant and the AWU.

[8] I also indicated that if it was necessary, the matter would be listed for a further hearing on 10 May 2021. However, neither party sought that a further hearing be convened.

The legislation

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

“219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armor Safety Pty Ltd

Details

AGLC: Armor Safety Pty Ltd [2021] FWC 4437
Case: [2021] FWC 4437
Decision Date: 22 JULY 2021

CaseChat Overview and Summary

Armor Safety Pty Ltd applied to the Fair Work Commission for termination of the Armor Safety Pty Ltd & The Australian Workers’ Union Agreement 2019. The Australian Workers’ Union contested the application. The dispute involved whether the agreement could be terminated under the Fair Work Act 2009, specifically sections concerning the termination of enterprise agreements. The Fair Work Commission was tasked with determining whether the conditions for terminating the agreement were satisfied, including whether the agreement had become unworkable or whether there was a significant change in circumstances.

The Commission considered the evidence presented by both parties, focusing on whether the agreement had indeed become unworkable or if there had been a substantial change in circumstances warranting termination. Armor Safety Pty Ltd argued that the agreement was no longer functional due to changes in the business environment, while the Australian Workers’ Union contended that the agreement remained effective and that any issues could be resolved through negotiation. The Commission weighed these arguments, assessing the practical implications of maintaining or terminating the agreement.

After evaluating the evidence and arguments, the Fair Work Commission concluded that the agreement had become unworkable. The Commission found that the changes in the business environment had rendered the agreement ineffective and unachievable in practice. Consequently, the application for termination was granted. The decision was made based on the specific criteria set out in the Fair Work Act, and the Commission determined that termination was the appropriate course of action under the circumstances.

The final order of the Fair Work Commission was to terminate the Armor Safety Pty Ltd & The Australian Workers’ Union Agreement 2019, effective from a specified date. The decision was made in accordance with the relevant provisions of the Fair Work Act, reflecting the Commission’s determination that the agreement could no longer be effectively implemented.

Orders