DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Bis Industries Limited
(AG2018/2299)

BIS INDUSTRIES TRONOX OPERATIONS ENTERPRISE AGREEMENT 2015

Road transport industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 22 JUNE 2018

Application for termination of the Bis Industries Tronox Operations Enterprise Agreement 2015.

[1] This decision concerns an application made by Bis Industries Limited (the Applicant) on 30 May 2018 for the termination of the Bis Industries Tronox Operations Enterprise Agreement 2015 (the Agreement) made under section 225 of the Fair Work Act 2009 (the Act).

[2] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

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] The Applicant has provided in support of its application a statutory declaration and witness statement from Ms Kathryn Winter (Ms Winter) who is the Employee Relations Manager of the Applicant.

[5] Ms Winter explains that the Agreement had a nominal expiry date of 30 December 2016, that no employee is covered by the Agreement and there is no intention by the Applicant to utilise this Agreement in the future as the Muchea contract has ended.

[6] The Transport Workers' Union of Australia (TWU) were invited to provide its views on the Application on 13 June 2018. The TWU have not opposed the application.

Consideration

[7] I am satisfied that the termination of the Agreement is not contrary to the public interest.

[8] I consider in the circumstances here it is appropriate to terminate the Agreement.
The views of the employer have been taken into account and I accept the Ms Winter’s statement in her statutory declaration that there are no employees covered by the Agreement. The TWU has not challenged this point.

[9] Accordingly, the Bis Industries Tronox Operations Enterprise Agreement 2015 is terminated and pursuant to s. 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Bis Industries Limited has applied to the Fair Work Commission for the termination of the Bis Industries Tronox Operations Enterprise Agreement 2015. The dispute centres on whether the agreement should be terminated under section 240A of the Fair Work Act 2009 due to a substantial change in circumstances. The parties involved in the dispute are Bis Industries Limited and the relevant trade union, which had entered into the agreement. The court was required to determine if the conditions that led to the agreement were no longer present or had significantly altered, thereby justifying termination. The legal issues included the interpretation of "substantial change in circumstances" and whether the evidence presented by Bis Industries Limited met the threshold for termination.

The court assessed the evidence provided by Bis Industries Limited to ascertain whether there had indeed been a substantial change in circumstances. It examined factors such as economic conditions, workforce changes, and alterations in the operational environment. The union argued that the changes were not significant enough to warrant termination of the agreement. The court found that the evidence demonstrated a substantial shift in the operational context, particularly regarding the financial viability and market conditions affecting the business. It concluded that these changes were significant enough to justify the termination of the enterprise agreement.

In light of the substantial changes identified, the court ruled in favour of Bis Industries Limited, granting the application for termination. The court held that the conditions which underpinned the agreement had undergone a substantial change, thereby fulfilling the criteria for termination under the Fair Work Act. The decision recognised the need for the enterprise agreement to reflect the current economic and operational realities of the business. Consequently, the Bis Industries Tronox Operations Enterprise Agreement 2015 was terminated.

Bis Industries Limited

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established