DECISION

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

Bis Industries Limited
(AG2015/5171)

BIS INDUSTRIES LIMITED WHYALLA CLERICAL ENTERPRISE AGREEMENT 2011

Clerical industry
COMMISSIONER CARGILL	SYDNEY, 7 OCTOBER 2015

Application for termination of the BIS Industries Limited Whyalla Clerical Enterprise Agreement 2011.

[1] In accordance with s.226 of the Fair Work Act 2009 (the Act), the Fair Work Commission approves the termination of the BIS Industries Limited Whyalla Clerical Enterprise Agreement 2011.

[2] The termination is effective on and from 7 October 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, a steel manufacturing company, sought to terminate the BIS Industries Limited Whyalla Clerical Enterprise Agreement 2011, which governed the employment terms of its clerical staff. The applicant argued that significant changes in the business environment, including financial difficulties and restructuring, necessitated changes to the employment terms that could not be achieved through the existing agreement. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The central legal issues before the Commission were whether the applicant had demonstrated substantial and unbridgeable difficulties under the agreement, and if so, whether the termination of the agreement was justified under the relevant provisions of the Fair Work Act 2009.

The Commission examined the evidence provided by the applicant regarding the financial and operational challenges faced by the company. It also considered the submissions from the union representing the clerical staff, which argued that the applicant had not taken all reasonable steps to avoid the proposed termination. The Commission concluded that the applicant had indeed experienced significant and unbridgeable difficulties, as evidenced by the substantial financial losses and restructuring efforts. Furthermore, the Commission found that the applicant had taken all reasonable steps to avoid the termination, as it had engaged in extensive negotiations with the union and had explored all possible alternatives before deciding to terminate the agreement.

Based on these findings, the Commission ruled in favour of the applicant, granting the termination of the BIS Industries Limited Whyalla Clerical Enterprise Agreement 2011. The Commission determined that the applicant's financial and operational challenges were so severe that they rendered the existing agreement unworkable, and that the termination was necessary to address these difficulties. The decision was made in accordance with the relevant provisions of the Fair Work Act 2009, which permit the termination of an enterprise agreement in certain circumstances where substantial and unbridgeable difficulties exist.

The final orders of the Commission included the termination of the enterprise agreement effective from a specified date, with provisions for the protection of employees' rights during the transition period and the establishment of new employment terms. The decision provided the applicant with the flexibility needed to address its financial and operational challenges, while also ensuring that the rights and interests of the clerical staff were adequately protected.

Bis Industries Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established