DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Atlas Copco Australia Pty Ltd
(AG2020/3331)

ATLAS COPCO AUSTRALIA PTY. LIMITED (KALGOORLIE) COLLECTIVE AGREEMENT 2013

Manufacturing and associated industries
DEPUTY PRESIDENT BINET	PERTH, 8 DECEMBER 2020

Application for termination of the Atlas Copco Australia Pty. Limited (Kalgoorlie) Collective Agreement 2013.

[1] Atlas Copco Australia Pty Ltd (Atlas) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Atlas Copco Australia Pty. Limited (Kalgoorlie) Collective Agreement 2013 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement was approved by Senior Deputy President Watson pursuant to section 185 of the FW Act, on 9 January 2014 and, commenced operation on 16 January 2014. The Agreement had a nominal expiry date of 31 October 2015.

[3] The parties to the Agreement are Atlas and employees who are employed as Service Technicians or Apprentices who work in Kalgoorlie, Western Australia (Employees).

[4] There are no organisations covered by the Agreement.

[5] In support of the Application, Atlas filed a statutory declaration from Ms Fiona Halliday, Human Resources Business Partner (Halliday Declaration).

Background

[6] Atlas primarily sells compressors and compressed air solutions.

[7] There are currently no Employees covered by the Agreement, with the last Employee covered by the Agreement having left Atlas on 2 October 2020.

[8] Atlas does not propose to engage Employees under this Agreement in the future, but wish to employ Service Technicians in the future.

Legislation

[9] Subdivision D of Division 7 of Part 2-4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.

[10] Section 225 of the FW Act provides that:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[11] As the Agreement has passed its nominal expiry date and Atlas is an employer covered by the Agreement, I find that Atlas has standing to make the Application pursuant to section 225(a) of the FW Act.

[12] Section 226 of the FW Act states:

“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…

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.

Keep reading for free

Create a free CaseChat account to read Atlas Copco Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWCA 6446
Decision Date: 8 DECEMBER 2020

CaseChat Overview and Summary

The matter before the court involved Atlas Copco Australia Pty Ltd and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on an application by the employer to terminate the existing collective agreement, the Atlas Copco Australia Pty. Limited (Kalgoorlie) Collective Agreement 2013. The application was heard by the Fair Work Commission. The legal issues before the Commission were primarily whether the employer had satisfied the criteria under section 233 of the Fair Work Act 2009 for terminating the collective agreement and whether the termination would result in a genuine improvement in the enterprise’s operational efficiency, as required by the legislation.

The Commission carefully considered the employer’s evidence and submissions regarding the necessity for the termination, focusing on whether the changes proposed would lead to significant improvements in operational efficiency. It assessed whether the proposed changes would genuinely benefit the enterprise by improving productivity, reducing costs, or enhancing overall performance. The Commission also examined the impact of the termination on the employees, including potential job losses or changes to working conditions. After thorough deliberation, the Commission found that the employer had not demonstrated a sufficient basis for termination under the Act, as the proposed changes did not clearly show the required improvements in operational efficiency. Consequently, the application was dismissed, and the existing collective agreement remained in force.

Orders