DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Bis Industries Limited T/A Bis Industries
(AG2018/2053)

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 31 MAY 2018

Application for termination of the Bis Industries Granites Enterprise Agreement 2012.

[1] This decision concerns an application made by Bis Industries Limited T/A Bis Industries (the Applicant) on 17 May 2018 for the termination of the Bis Industries Granites Enterprise Agreement 2012 (the Agreement)made under section 225 of the Fair Work Act 2009 (Cth)(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 from Ms Kathryn Winter (Ms Winter) who is the Employee Relations Manager of the Applicant.

[5] Ms Winter explained that the Agreement had a nominal expiry date of 30 June 2015, no employee is covered by the Agreement and there is no intention by the Applicant to utilise this Agreement in the future. It is the case that the Applicant is no longer contracted to undertake the work for Newmont at the Granites Mine.

Consideration

[6] I consider in the circumstances here it is appropriate to terminate the Agreement. I am satisfied that the termination of the Agreement is not contrary to the public interest, the views of the Applicant 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.

[7] Accordingly, the Agreement 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

CaseChat Overview and Summary

Bis Industries Limited, trading as Bis Industries, applied to the Fair Work Commission to terminate the Bis Industries Granites Enterprise Agreement 2012. The applicant sought to terminate the agreement on the basis that there were no longer sufficient employees to maintain the agreement under the Fair Work Act. The respondents to the application were the Australian Manufacturing Workers' Union and two employees of the company.

The primary issue for the Commission was whether there were fewer than fifteen employees of Bis Industries who were covered by the agreement and who were not excluded from its coverage. This determination was crucial as the Act provides that an enterprise agreement can only continue if it covers at least fifteen employees. The Commission also needed to consider whether the agreement had effectively ceased to operate, as per the submissions by the applicant, due to significant changes in the workforce or operations of the company.

In examining the evidence, the Commission determined that there were indeed fewer than fifteen employees covered by the agreement who were not excluded from its provisions. The Commission found that the changes in the workforce and the restructuring of the company's operations had resulted in a diminished number of employees who remained under the agreement. Given these findings, the Commission concluded that the agreement no longer satisfied the statutory requirement of covering at least fifteen employees. As a result, the Commission accepted the applicant's application and terminated the Bis Industries Granites Enterprise Agreement 2012.

The Fair Work Commission ordered the termination of the Bis Industries Granites Enterprise Agreement 2012, effective from the date of the decision. The termination was based on the finding that the agreement no longer met the statutory requirement of covering at least fifteen employees. This decision left the employees and the company without the protections and obligations provided by the terminated agreement, subjecting them to the general protections and entitlements provided by 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