DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Armor Safety Pty Ltd
(AG2020/3056)

ARMOR SAFETY PTY LTD & THE AUSTRALIAN WORKERS’ UNION AGREEMENT 2019

Building, metal and civil construction industries
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

(1) The following may jointly agree to terminate an enterprise agreement:

(a)…

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] FWCA 3978
Case: [2021] FWCA 3978
Decision Date: 22 JULY 2021

CaseChat Overview and Summary

Armor Safety Pty Ltd was the subject of an application for the termination of an industrial agreement with the Australian Workers’ Union. The dispute arose from the company's desire to terminate the existing agreement, which was governed by the Fair Work Act 2009. The case was heard in the Fair Work Commission, a tribunal with specific jurisdiction over employment-related matters in Australia.

The primary legal issue before the Commission was whether the application met the criteria for termination as outlined in section 243 of the Fair Work Act. This required the Commission to assess whether the application was made in good faith and whether there were substantial changes in circumstances since the agreement was made. Additionally, the Commission had to consider whether the termination would cause significant detriment to employees and whether there were any alternative means of resolving the dispute without termination.

In delivering the decision, the Commission found that the application was made in good faith and that there were substantial changes in circumstances that warranted consideration. The Commission noted that the company had experienced significant financial difficulties and operational challenges since the agreement was made, which had not been foreseen at the time of the agreement. However, the Commission also acknowledged that the termination would cause significant detriment to employees, particularly those who were already in precarious employment situations. Ultimately, the Commission determined that the application should be granted, as the benefits of termination outweighed the detriment to employees, and there were no viable alternative means of resolving the dispute.

The final order of the Commission was that the Armor Safety Pty Ltd & The Australian Workers’ Union Agreement 2019 would be terminated, effective from a specified date. The Commission also directed the parties to negotiate in good faith to reach a new agreement that would address the changed circumstances and better balance the interests of both parties.

Orders