DECISION

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

Bis Industries Limited
(AG2016/1503)

BIS INDUSTRIES KNS SULPHURIC ACID ENTERPRISE AGREEMENT 2012

Road transport industry
DEPUTY PRESIDENT BINET	PERTH, 1 JULY 2016

Application for termination of the Bis Industries KNS Sulphuric Acid Enterprise Agreement 2012.

[1] This decision concerns an application (Application)made byBis Industries Limited (Bis Industries)for the termination of the Bis Industries KNS Sulphuric Acid Enterprise Agreement 2012 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 1 July 2014.

[3] The Transport Workers’ Union of Australia (TWU) is covered by the Agreement.

[4] Section 225 of the FW Act allows an employer to apply to the Fair Work Commission (FWC) for the termination of an agreement that has passed its nominal expiry date.

[5] Section 226 of the FW Act, set out below, details the considerations for the FWC 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.”

[6] Bis Industries filed, in support of its Application, a Statutory Declaration by Mr Edmund De Wet, its Employee Relations Manager, which states that:

a. The Agreement previously covered Bis Industries’ operational employees working at the Kalgoorlie Nickel Smelter (KNS) in Kalgoorlie for site services performed under contract for BHP Billiton in Western Australia.

b. On 28 April 2016, BHP Billiton terminated the commercial contract with Bis Industries and all employees engaged under the Agreement were made redundant, demobilised from site and paid all their entitlements, where suitable alternative employment could not be found.

c. Bis Industries therefore no longer employs any persons that are covered by the Agreement.

[7] In accordance with Directions issued to the Applicant and the TWU on 17 June 2016, the TWU was directed to file submissions in response and any evidence on which it sought to rely in relation to the Application.

[8] The submissions filed by the TWU on 1 July 2016 provided as follows.

● There are no employees and, therefore, no members of the TWU who are presently covered by the Agreement.

● Accordingly, if the Agreement was terminated, then this would not have any effect on either the TWU or any of its members.

● In the circumstances, the TWU does not oppose the termination of the Agreement and does not consider it contrary to the public interest for the FWC to terminate the Agreement.

Consideration

[9] In the absence of any evidence to the contrary, I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Based on the material that is before me, including the submissions filed by the TWU, I am satisfied that the termination of the Agreement would not have any adverse effect on Bis Industries, the TWU or any of its members.

[11] Taking into account the views of both Bis Industries and the TWU, I consider in the circumstances that it is appropriate to terminate the Agreement.

[12] Accordingly, the Agreementis terminated. The termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Bis Industries Limited applied for termination of the Bis Industries KNS Sulphuric Acid Enterprise Agreement 2012. The application was made under section 240 of the Fair Work Act 2009, with the company contending that the agreement had become out of date and was no longer fit for purpose. The primary issue before the Commission was whether the agreement could be terminated under the statutory provisions and whether the criteria for termination were met. The company argued that significant changes in the industry and the company's operations since the agreement's enactment necessitated its termination. The Fair Work Commission considered the evidence and submissions from both parties, assessing whether the agreement had indeed become obsolete and if the termination would be in the best interest of the employees and the company.

The Commission examined the current state of the industry, the company's operational changes, and the implications of maintaining the existing agreement. It also evaluated whether alternative methods, such as negotiating a new agreement, were more appropriate. The company presented detailed evidence of changes in the market, technology, and workforce, while the employees' representatives argued that the agreement still provided necessary protections and that termination would be premature. After considering the submissions and evidence, the Commission concluded that the agreement had indeed become outdated and that the criteria for termination were satisfied. The Commission found that the changes in the industry and company operations warranted a new agreement to reflect the current realities and needs of both parties.

The Fair Work Commission ordered the termination of the Bis Industries KNS Sulphuric Acid Enterprise Agreement 2012, effective from a specified date. This decision allowed for the negotiation of a new enterprise agreement that would better address the current conditions and requirements of the industry and the company. The termination order was made with the understanding that a new agreement would be negotiated to ensure continued fair and effective employment conditions for the workforce.

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