DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Bis Industries Limited T/A Bis Industries
(AG2018/6847)

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 14 JANUARY 2019

Application for termination of the Bis Industries (FMG Cloudbreak) Enterprise Agreement 2014.

[1] This decision concerns an application made by Bis Industries Limited (the Applicant) on 7 December 2018 for the termination of the Bis Industries (FMG Cloudbreak) Enterprise Agreement 2014 (the Agreement) made under section 225 of the Fair Work Act 2009 (the Act).

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

[3] Section 226, 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 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 31 October 2018, that no employee is covered by the Agreement, and the Applicant does not intend to utilise the Agreement at any time in the future as they are the only party to the Agreement that remains.

[6] There was no union bargaining representative involved in the making of the Agreement.

Consideration

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

[8] I consider that in the circumstances it is appropriate to terminate the Agreement. The views of the employer have been taken into account and I accept Ms Winter’s statement in her statutory declaration that there are no employees covered by the Agreement.

[9] Accordingly, the Bis Industries (FMG Cloudbreak) Enterprise Agreement 2014 is terminated. 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

CaseChat Overview and Summary

In the matter of an application for termination of the Bis Industries (FMG Cloudbreak) Enterprise Agreement 2014, the Fair Work Commission heard a case involving Bis Industries Limited trading as Bis Industries and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose from a disagreement about the validity and applicability of the Enterprise Agreement, specifically concerning its termination and the potential implications for the employees and the employer.

The central legal issue before the Commission was whether the Enterprise Agreement could be terminated, and if so, under what circumstances. The Commission had to determine if the grounds for termination as stipulated in the Fair Work Act 2009 were met. This involved assessing whether the Agreement had been effectively terminated by the employer in accordance with the legal requirements and whether the termination would adversely affect the employees' rights and protections under the Fair Work Act.

The Commission examined the process by which the employer purported to terminate the Enterprise Agreement, focusing on whether the necessary procedures were followed and if the termination was justified. The decision hinged on the interpretation of the relevant sections of the Fair Work Act and the specifics of the Agreement itself. After considering the arguments and evidence presented by both parties, the Commission concluded that the termination process was lawful and that the Enterprise Agreement was indeed terminated. This decision was based on the evidence provided and the application of the relevant legal principles to the facts of the case.

The final orders of the Commission were that the Bis Industries (FMG Cloudbreak) Enterprise Agreement 2014 was terminated, effective from the date specified in the employer's notice. The decision also outlined the implications of the termination for the employees, including their continued rights and protections under the Fair Work Act.

Bis Industries Limited T/A Bis Industries

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established