ATB Industrial Employment Pty Ltd

[2021] FWCA 3063

[2021] FWCA 3063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

ATB Industrial Employment Pty Ltd
(AG2021/5054)

ATB INDUSTRIAL EMPLOYMENT (STEEL FABRICATION DIVISION) ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 27 MAY 2021

Application for termination of the ATB Industrial Employment (Steel Fabrication Division) Enterprise Agreement 2017.

[1] ATB Industrial Employment Pty Ltd (ATB) is covered by the ATB Industrial Employment (Steel Fabrication Division) Enterprise Agreement 2017 (Agreement) and has made an application to terminate the Agreement pursuant to s 225 of the Fair Work Act 2009 (Cth) (Act). The nominal expiry date of the Agreement was 26 October 2020.

[2] There are no employee organisations covered by the Agreement.

[3] There are 17 employees covered by the Agreement.

[4] On 12 May 2021 I made the following directions in this matter:

1. By 4pm on 17 May 2021, ATB Industrial Employment Pty Ltd (ATB) must file in the Fair Work Commission a statutory declaration made by an appropriate officer or employee addressing the following matters:

a. How many employees are covered by the ATB Industrial Employment (Steel Fabrication Division) Enterprise Agreement 2017 (Agreement)? In what classifications are those employees employed?

b. What rate of pay is currently being paid to each classification covered by the Agreement?

c. The Agreement provides for higher rates of pay than the Manufacturing and Associated Industries and Occupations Award. Having regard to that fact, on what basis does ATB contend that the “Agreement provided no additional benefit outside the Manufacturing and Associated Industries and Occupations Award”?

d. In what respects does ATB say that the Agreement is “outdated”?

e. If the Agreement is terminated, what rate of pay will be paid to each classification currently covered by the Agreement? What, if any, assurance has been given to employees covered by the Agreement that such rates of pay will not be decreased in the future?

f. If the Agreement is terminated, what terms and conditions will govern the employment of the employees currently covered by the Agreement.

g. What information, if any, has been provided to employees covered by the Agreement as to (i) the reason(s) for the application to terminate the Agreement and (II) the terms and conditions that will govern their employment if the Agreement is terminated? Provide a copy of any written communication or information provided to employees covered by the Agreement about any such matters.

h. What is the “more consistent and mutually beneficial classification framework” referred to in part 2.1(c) of the form F24C filed by ATB?

i. How would terminating the Agreement (i) increase flexibility for ATB, (ii) promote productivity, and (c) increase economic growth for ATB?

2. By 4pm on 18 May 2021, ATB must provide a copy of these directions to all employees covered by the Agreement, together with a copy of:

a. the Form F24B and Form F24C filed by ATB in the Fair Work Commission in support of its application to terminate the Agreement; and

b. the statutory declaration made in accordance with direction 1 above.

3. By 4pm on 18 May 2021, ATB must inform, in writing, the employees covered by the Agreement that they have until 4pm on 25 May 2021 to inform the Fair Work Commission of their views in relation to the application to terminate the Agreement.

4. By 4pm on 25 May 2021, any employee covered by the Agreement who either opposes the termination of the Agreement or wishes to inform the Fair Work Commission of their views in relation to the application to terminate the Agreement, must file in the Commission any submissions, written statements and documents they wish to rely on in relation to the application to terminate the Agreement. Any such material may be filed in the Commission by emailing it to [email protected].

5. By 4pm on 25 May 2021, ATB must file in the Fair Work Commission a statutory declaration confirming compliance with directions 2 and 3 above.

[5] On 17 May 2021 ATB filed a statement made by Ms Nancy Shepherdson, Administration Services Manager, addressing the matters set out in direction 1 made on 12 May 2021. In summary, Ms Shepherdson says that:

• The Agreement is outdated and ATB wishes to put a more consistent and mutually beneficial classification framework in place for all employees.

• Employees covered by the Agreement have been advised that their current rates of pay will not decrease after the Agreement is terminated and the current conditions of the Agreement will be honoured as a minimum. In addition, the employees will be covered by the Manufacturing and Associated Industries and Occupations Award 2020.

• Employees covered by the Agreement were provided with a draft new employment contract and were provided with the option of re-negotiating the Agreement or transitioning to individual contracts. All the employees elected to terminate the Agreement and transition to individual contracts.

• A remuneration structure will be negotiated with the employees covered by the Agreement, so as to compensate them at a rate commensurate with each employee’s qualifications, experience and knowledge, as well as market conditions and industry benchmarking.

[6] On 19 May 2021 ATB filed a statement made by Ms Nancy Shepherdson, confirming that ATB had complied with directions 2 and 3 made on 12 May 2021.

[7] I am satisfied that the employees covered by the Agreement have been given an opportunity to inform the Fair Work Commission (Commission) of their views in relation to the application to terminate the Agreement. The Commission has not received any communication from an employee covered by the Agreement in relation to the application to terminate the Agreement.

[8] Having regard to the information contained in Ms Shepherdson’s statements made on 17 and 19 May 2021, together with the declaration made by Ms Shepherdson on 10 May 2021 in support of the application for termination of the Agreement, I am satisfied that: 1

• termination of the Agreement is not contrary to the public interest; and

• it is appropriate to terminate the Agreement taking account all the circumstances including:

o the views of the employees covered by the Agreement and ATB; and

o the circumstances of those employees and ATB including the likely effect that the termination will have on each of them.

[9] Accordingly, I terminate the Agreement with effect from midnight on Friday, 28 May 2021. An order [PR730239] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1 Section 226 of the Fair Work Act 2009 (Cth)

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