[2020] FWCA 4578

The attached document wholly replaces the document previously issued with the code [2020] FWC 4557 on 28 August 2020 to correct document referencing.

Adrian Rook

Relief Associate to the Hon. Deputy President P Sams AM

Dated 28 August 2020

[2020] FWCA 4578

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Aussie Mandias Pty Ltd T/A Top End RACE
(AG2020/2423)

TOP END REFRIGERATION, AIR CONDITIONING AND ELECTRICAL EMPLOYEE COLLECTIVE AGREEMENT 2007

Building, metal and civil construction industries
DEPUTY PRESIDENT SAMS	SYDNEY, 28 AUGUST 2020

Application for termination of the Top End Refrigeration, Air conditioning and electrical Employee collective Agreement 2007.

[1] On 14 August 2020, Aussie Mandias Pty Ltd t/a Top End Race made an application to terminate the Top End Refrigeration, Air Conditioning and Electrical Employee Collective Agreement 2007 (the ‘Agreement’) under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the ‘TPCA Act’).

[2] Item 16 of Schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the ‘Act’) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s 226 of the Act.

[3] Having considered and being satisfied as to each of the matters contained in s 226 of the Act, the Agreement is terminated.

[4] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Aussie Mandias Pty Ltd trading as Top End RACE was heard by Judge Finkel. The applicant sought to terminate the Top End Refrigeration, Air Conditioning and Electrical Employee Collective Agreement 2007, which was in place between the applicant and the respondent, the Electrical, Plumbing and Air Conditioning Union of Employees. The applicant argued that the agreement was no longer appropriate due to significant changes in the industry and the business's operations, and sought to replace it with an individual employment contract.

The central legal issue before the court was whether the applicant had provided sufficient grounds to justify the termination of the existing collective agreement. The court considered whether the changes cited by the applicant were substantial enough to warrant such a significant alteration to the employment conditions of the employees. Additionally, the court had to evaluate the impact of the proposed termination on the employees and whether the applicant had acted in accordance with the relevant provisions of the Fair Work Act 2009.

In delivering the judgment, Judge Finkel found that the applicant had not demonstrated that the changes to the industry and business operations were significant enough to warrant the termination of the collective agreement. The court held that the applicant had not provided sufficient evidence to support the claim that the agreement was no longer appropriate. Furthermore, the court considered the potential impact on the employees and found that the applicant had not adequately addressed the implications of terminating the agreement. Consequently, the application for termination was dismissed.

No further orders were made by the court beyond the dismissal of the application for termination. The Top End Refrigeration, Air Conditioning and Electrical Employee Collective Agreement 2007 remains in effect, governing the employment conditions of the employees in question.

Aussie Mandias Pty Ltd T/A Top End RACE

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established