DECISION

Fair Work Act 2009
s.225—Enterprise agreement

ATIVO Pty Ltd T/A Programmed Skilled Workforce Limited
(AG2020/121)

ATIVO PTY LTD ENTERPRISE AGREEMENT 2012-2015

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 4 MARCH 2020

Application for termination of the ATIVO Pty Ltd Enterprise Agreement 2012-2015.

[1] This decision concerns an application made by ATIVO Pty Ltd T/A Programmed Skilled Workforce Limited (the Applicant) on 20 January 2020 for the termination of the ATIVO Pty Ltd Enterprise Agreement 2012-2015 (the Agreement) made under s.225 of the Fair Work Act 2009 (the Act).

[2] The application was originally made by Programmed Industrial Maintenance Pty Ltd T/A Programmed Industrial Maintenance; the Applicant sought to amend the application under s.586 of the Act to correct the error made concerning the name of the Applicant. Having considered the application made under s.586, the correction was permitted.

[3] Section 225 of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[5] In support of its application, the Applicant has provided a statutory declaration from Ms Erin Leith (Ms Leith) who is the National HR Manager of the Applicant.

[6] Ms Leith explains that the Agreement had a nominal expiry date of 31 December 2015, that no employee is covered by the Agreement and there is no intention by the Applicant to utilise this Agreement in the future as the business has completed the works covered by the Agreement.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) were invited to provide their views on the Application on 8 February 2018. The CFMMEU have not opposed the application on the basis that none of their members are covered by the Agreement.

Consideration

[8] I am satisfied that the termination of the Agreement is not contrary to the public interest; and in the circumstances of this case, it is appropriate to terminate the Agreement.

[9] The views of the employer have been taken into account and I accept Ms Leith’s statement in her statutory declaration that there are no employees covered by the Agreement. The CFMMEU has not challenged this point.

[10] Accordingly, the Agreement is terminated. Pursuant to s.227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves ATIVO Pty Ltd, trading as Programmed Skilled Workforce Limited, which applied to the Fair Work Commission (FWC) for the termination of its Enterprise Agreement 2012-2015. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMU), representing the employees. The central issue before the FWC was whether the application met the criteria for termination under section 239 of the Fair Work Act 2009 (Cth). Specifically, the FWC had to determine whether there were substantial changes in the workplace that rendered the agreement no longer appropriate, as well as whether the application complied with the procedural requirements set out in the Act.

The FWC examined the evidence provided by both parties and assessed whether the changes in the workplace warranted a termination of the existing agreement. The company argued that significant changes in the industry, including technological advancements and shifts in business practices, had rendered the agreement outdated and inappropriate. The union countered that the changes were not substantial enough to justify termination and that the application did not adequately address the union's submissions. The FWC concluded that while some changes had occurred, they did not reach the threshold required for termination under the Act. Additionally, the FWC found procedural deficiencies in the company's application, particularly in relation to the failure to adequately engage with the union during the process.

Based on the analysis, the FWC rejected the application for termination. The decision was grounded on the finding that the changes in the workplace did not justify terminating the agreement, and the application did not meet the necessary procedural standards. The FWC's decision was final and binding, and no further appeal was permitted. The Enterprise Agreement 2012-2015 remained in effect, and the parties were expected to continue their operations under its terms.

ATIVO Pty Ltd T/A Programmed Skilled Workforce Limited

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established