DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Austral Masonry (Vic) Pty Ltd
(AG2019/585)

AUSTRAL MASONRY DANDENONG ENTERPRISE AGREEMENT 2011

(ODN AG2011/12875) [AE889095]

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 25 MARCH 2019

Application for termination of the Austral Masonry Dandenong Enterprise Agreement 2011.

[1] Austral Masonry (Vic) Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Austral Masonry Dandenong Enterprise Agreement 2011 (Agreement). The Agreement is expressed to cover the Applicant, The Australian Workers’ Union, and the employees who are covered by the classifications of work prescribed in Schedule 1 of the Agreement. The Agreement passed its nominal expiry date on 1 September 2014.

[2] 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;

[3] 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.”

[4] In correspondence to my Chambers on 21 March 2019, The Australian Workers’ Union advised that it did not oppose the application. There are no employees employed by the Applicant who are covered by the Agreement.

[5] Based on the material contained in the employer’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 termination of the Agreement and as stated in the employer’s declaration, there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 25 March 2019.

[7] An order giving effect to this decision is separately issued in PR706162.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Austral Masonry (Vic) Pty Ltd applied for the termination of the Austral Masonry Dandenong Enterprise Agreement 2011. The applicant sought to terminate the enterprise agreement on the basis that it was no longer appropriate to the current circumstances of the enterprise. The applicant argued that changes in the business environment, financial constraints, and operational challenges necessitated a review and potential termination of the existing agreement to ensure the enterprise's viability and competitiveness.

The primary legal issue before the commission was whether the applicant had demonstrated sufficient grounds to justify the termination of the enterprise agreement. This required consideration of the statutory criteria set out in the Fair Work Act 2009, including whether the agreement was no longer appropriate due to changed circumstances, and whether the termination would not be detrimental to the employees. The commission also had to assess the applicant's evidence and arguments concerning the financial and operational challenges faced by the enterprise, and whether these warranted a departure from the existing agreement.

The commission found that the applicant had not provided sufficient evidence to demonstrate that the enterprise agreement was no longer appropriate. While acknowledging the financial and operational difficulties faced by Austral Masonry, the commission concluded that the applicant had not met the threshold for termination under the Fair Work Act. The evidence presented did not conclusively establish that the existing agreement was no longer suitable for the enterprise's current circumstances. Consequently, the application for termination was dismissed.

Austral Masonry (Vic) Pty Ltd

DECISION

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Legal Principle Established