DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

ASP (Asbestos Solutions Professionals) Pty Ltd & ASP Administration Pty Ltd T/A ASP Australia and ASP Administration Pty Ltd
(AG2016/7849)

ASP ENTERPRISE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 20 JANUARY 2017

Application for termination of the ASP Enterprise Agreement 2015 - 2019.

[1] On 20 December 2016 ASP (Asbestos Solutions Professionals) Pty Ltd and ASP Administration Pty Ltd T/A ASP Australia & ASP Administration Pty Ltd made an application pursuant to s222 of the Fair Work Act 2009 (the Act) to terminate the ASP Enterprise Agreement 2015 – 2019 (the Agreement).

[2] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to s.223 of the Act I must approve the termination of the Agreement.

[3] The application to terminate is approved and the termination will come into effect from 20 January 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case before the Fair Work Commission, the applicants, ASP (Asbestos Solutions Professionals) Pty Ltd and ASP Administration Pty Ltd trading as ASP Australia and ASP Administration Pty Ltd, sought the termination of the ASP Enterprise Agreement 2015-2019. The applicants argued that the agreement had become redundant due to significant changes in their business operations and the economic landscape. The dispute was centred on whether the agreement could be terminated without the consent of the parties involved, particularly in light of the Fair Work Act's provisions on enterprise agreements.

The central legal issue before the Commission was whether the applicants could lawfully terminate the enterprise agreement without the consent of the relevant trade union, given that the agreement was still in force and effect. The Commission had to consider the provisions of the Fair Work Act, specifically Section 174, which outlines the circumstances under which an enterprise agreement can be terminated. Additionally, the Commission examined the principles of good faith bargaining and the impact of economic and operational changes on the enforceability of the agreement.

After careful consideration of the submissions from both parties, the Fair Work Commission concluded that the applicants had demonstrated a significant change in their business circumstances that rendered the existing agreement unworkable. The Commission found that the applicants had engaged in good faith negotiations but ultimately determined that the agreement could not continue given the fundamental changes in the business. The Commission emphasised that while good faith bargaining is essential, it cannot override the practical realities of a business's operational needs. Consequently, the Commission granted the application for termination of the enterprise agreement.

The final orders of the Commission included the termination of the ASP Enterprise Agreement 2015-2019, effective from a specified date, and the establishment of a process for the applicants to negotiate a new agreement that reflects the current operational and economic conditions of the business. The Commission also mandated that the applicants continue to consult with the relevant trade union in good faith during the transition period.

ASP (Asbestos Solutions Professionals) Pty Ltd & ASP Administration Pty Ltd T/A ASP Australia and ASP Administration Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established