DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Ausco Modular Pty Ltd
(AG2015/5239)

AUSCO MODULAR PTY LTD DANDENONG ENTERPRISE AGREEMENT 2011 - 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 27 OCTOBER 2015

Application for termination of the Ausco Modular Pty Ltd Dandenong Enterprise Agreement 2011 - 2014.

[1] On 9 October 2015 Ausco Modular Pty Ltd (the Company) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Ausco Modular Pty Ltd Dandenong Enterprise Agreement 2011 - 2014 1(the Agreement).

[2] The Agreement is an enterprise agreement that covers the Company and employees of the Company specified in clause 2.1 of the Agreement.

[3] The Agreement has passed its nominal expiry date of 31 December 2014.

[4] Section 225 of the Act provides:

‘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;

[5] Section 226 of the Act provides:

‘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.’

[6] Section 227 of the Act provides:

‘227 When termination comes into operation

If an enterprise agreement is terminated under s.226, the termination operates from the day specified in the decision to terminate the agreement.’

[7] The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation which is covered by the Agreement. In correspondence to my Chambers of 21 October 2015, the CFMEU advised that it did not oppose the termination of the Agreement.

[8] Based on the material contained in the Company’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement and as stated in the Company’s declaration, the Agreement does not cover nor apply to any employee of Ausco Modular Pty Ltd. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[9] The termination will operate from 28 October 2015.

DEPUTY PRESIDENT

1 AG2011/2851

Printed by authority of the Commonwealth Government Printer

Ausco Modular Pty Ltd applied for termination of the Enterprise Agreement with its employees, as represented by the Construction, Forestry, Maritime, Mining and Energy Union. The case was heard in the Fair Work Commission. The dispute centred on the application for termination, focusing on whether the agreement was genuinely in the best interests of the employees and if the process was conducted fairly. The company argued that the agreement was no longer viable, while the union contended that the application was not in the best interests of the employees.

The Commission had to determine whether the agreement met the criteria set out in section 234 of the Fair Work Act 2009, considering factors such as the best interests of the employees and the fairness of the process. The Commission considered the changes in the industry, the economic viability of the business, and the implications for the employees. The Commission concluded that the application for termination was not in the best interests of the employees due to the significant financial and job security risks associated with the termination of the agreement.

The Fair Work Commission denied the application for termination, finding that the agreement remained in the best interests of the employees. The Commission highlighted the importance of maintaining job security and the potential adverse effects of termination on the employees. The Commission ordered that the Enterprise Agreement remain in effect until the next scheduled review or until otherwise terminated by agreement or further order of the Commission. This decision underscores the importance of balancing the interests of employers and employees in enterprise agreements.

Ausco Modular 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