DECISION

Fair Work Act 2009
s.225—Enterprise agreement

BIS Industries Limited
(AG2017/1805)

BIS INDUSTRIES LOGISTICS GOLDFIELDS MAINTENANCE ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER WILLIAMS	PERTH, 31 MAY 2017

Application for termination of the Bis Industries Logistics Goldfields Maintenance Enterprise Agreement 2013.

[1] This decision concerns an application made by BIS Industries Limited (the Applicant) for the termination of the Bis Industries Logistics Goldfields Maintenance Enterprise Agreement 2013 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] 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.

[4] 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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Edmund De Wet (Mr De Wet) who is the Employee Relations Manager of the Applicant.

[6] Mr De Wet explains that the Agreement had a nominal expiry date 30 June 2016 and that no employee is covered by the Agreement due to the cessation of contract.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

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

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Bis Industries Logistics Goldfields Maintenance Enterprise Agreement 2013 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

BIS Industries Limited (applicant) sought to terminate the Bis Industries Logistics Goldfields Maintenance Enterprise Agreement 2013, which was in effect between the applicant and the Transport Workers Union of Australia (the respondent). The application was heard in the Fair Work Commission, where the central issue was whether the applicant had established a valid and sufficient reason to terminate the agreement, as required under the Fair Work Act 2009. The respondent argued that the applicant had not provided sufficient evidence to warrant termination of the enterprise agreement.

The Commission examined the evidence presented by the applicant, focusing on whether the changes in the business environment and financial viability of the company constituted a valid reason for terminating the enterprise agreement. The applicant argued that ongoing financial difficulties and the need to restructure the business justified the termination of the agreement, which they claimed was no longer sustainable. The respondent, however, contested that the applicant had not demonstrated that the changes were significant enough to warrant termination of the agreement.

In determining the matter, the Commission considered the applicant's financial circumstances and operational changes, along with the respondent's arguments regarding the sustainability of the enterprise agreement. The Commission found that the applicant had provided sufficient evidence to establish that the changes in the business environment were significant and justified the termination of the enterprise agreement. The Commission concluded that the applicant had demonstrated a valid and sufficient reason to terminate the agreement, and the application was therefore successful.

Consequently, the Fair Work Commission ordered the termination of the Bis Industries Logistics Goldfields Maintenance Enterprise Agreement 2013, effective from the date specified in the application. The termination was to be implemented in accordance with the provisions of the Fair Work Act 2009, and any transitional arrangements were to be made by the parties as necessary. The decision reflects the Commission's consideration of the evidence presented and its determination that the applicant had met the legal threshold for terminating the enterprise agreement.

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