Autopact Victoria Pty Ltd - [2024] FWCA 963

[2024] FWCA 963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Autopact Victoria Pty Ltd

(AG2023/4589)

Bayford Group Pty Ltd Enterprise Agreement 2015

Vehicle industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 18 MARCH 2024

Application for termination of the Bayford Group Pty Ltd Enterprise Agreement 2015.

An application was filed by Autopact Victoria Pty Ltd (the Applicant) seeking the termination of the Bayford Group Pty Ltd Enterprise Agreement 2015[1](the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act). At the time of filing, it was said that there were 19 employees covered by the Agreement. It may also be noted that there are no employee organisations covered by the Agreement and the Agreement has passed its nominal expiry date of 12 February 2020.

I issued Directions for the further conduct of the application. Having noted that the employer covered by the Agreement is Bayford Group Pty Ltd (Company), I firstly required confirmation that the Applicant is the “Employer” entity covered by the Agreement. In response, the Applicant provided material that satisfied me this was the case. An ASIC Extract was produced for Autopact Victoria Pty Ltd (ACN 618 771 574) listing its ultimate holding company as Autopact Pty Ltd (ACN 608 040 606). Relatedly, a Financial Statement for Autopact Pty Ltd for 30 June 2018 was also provided. It outlined that Autopact Pty Ltd and the entities it controlled had acquired the business of the Bayford Group operating in Victoria on 31 July 2017 (the acquisition).

Secondly, the Applicant was also required to provide a copy of the Form F24B – Application Form (Form F24B) and the Form F24C Statutory Declaration made by Carly Black on 27 November 2023 (Form F24C) to each of the employees covered by the Agreement and the directions outlined that this was to be effected both via email communication and by placing a copy of both documents on a noticeboard used for communications with staff at each workplace. In response, the Applicant provided proof of service of the Form F24B and Form F24C via email on at least 19 employees purportedly covered by the Agreement, along with photos of these documents pinned on the noticeboards at workplaces located at Bundoora, Camberwell, Campbellfield, Epping and Fairfield.

Thirdly, the Applicant was invited to file with the Commission and serve on each of the employees covered by the Agreement any material upon which it relied, including material which addresses s.226 of the Act. On 20 December 2023, the Applicant provided further material, which included:

a)A document outlining an Executive Summary, the Applicant’s objective in seeking to have the Agreement terminated, an overview of the process and a conclusion.

b)Copies of communications sent to employees.

c)Attendance records from toolbox meetings conducted at each of the workplaces addressing the termination of the Agreement and confirmation from relevant managers that they had completed the subsequent 1:1 consultations with affected employees.

Fourthly, interested employees were…

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.

Continue reading Autopact Victoria Pty Ltd

Details

AGLC: Autopact Victoria Pty Ltd [2024] FWCA 963
Case: [2024] FWCA 963
Decision Date: 18 MARCH 2024

CaseChat Overview and Summary

Autopact Victoria Pty Ltd applied to the Fair Work Commission for the termination of the Bayford Group Pty Ltd Enterprise Agreement 2015. The Agreement, which had passed its nominal expiry date, applied to 19 employees and no employee organisations. The application was made under section 225 of the Fair Work Act 2009. The legal issues centred on whether the Commission was satisfied that the continued operation of the Agreement would be unfair to the employees covered by it and whether it was appropriate in all the circumstances to terminate the Agreement under section 226(1A) of the Act.

The Court considered the views of the employees, employers, and employee organisations covered by the Agreement, as well as other relevant matters. There was no direct evidence from any employee covered by the Agreement, but the Court accepted that the employees had been informed and consulted about the application. The Applicant supported the termination, and there were no employee organisations covered by the Agreement. The Court found that the continued operation of the Agreement would be unfair to the employees due to wage rates and overtime restrictions, and that it was appropriate in all the circumstances to terminate the Agreement. The Court also noted that termination would simplify the Applicant's payroll function and that the Applicant aimed to have all employees contracted under the same industrial instrument.

The Court concluded that there was no expressed opposition to the termination of the Agreement and that it was appropriate to terminate the Agreement. The termination will take effect from 25 March 2024.

Orders