DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Bridgestone Earthmover Tyres Pty Ltd
(AG2017/2760)

QUEENSLAND FERTILIZER PROJECT PHOSPHATE HILL BRIDGESTONE EARTHMOVER TYRES PTY LTD PARTNERSHIP CERTIFIED AGREEMENT 1997

Vehicle industry
COMMISSIONER HUNT	BRISBANE, 28 JULY 2017

Application for termination of the Queensland Fertilizer Project Phosphate Hill Bridgestone Earthmover Tyres Pty Ltd Partnership Certified Agreement 1997.

[1] On 11 July 2017, Bridgestone Earthmover Tyres Pty Ltd (the Employer) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the the Queensland Fertilizer Project Phosphate Hill Bridgestone Earthmover Tyres Pty Ltd Partnership Certified Agreement 1997 (the Agreement).

[2] The application was supported by a statutory declaration from the Employer that declared, amongst other things, that there are no employees who are covered by the agreement. The Employer also declared that there was no known nominal expiry date of the Agreement as there was no available copy of the Agreement.

[3] The Australian Workers’ Union are an employee organisation which is covered by the Agreement. In correspondence to my Chambers on 26 July 2017, the AWU advised that it does not oppose the termination of the Agreement.

Legislative provisions

[4] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act2009 (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[5] Chapter 2, Part 2-4, Division 7, Subdivision D is as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[6] Based on the material contained in the statutory declaration filed with the application, and in consideration of s.226(a) of the Act, I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[7] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[8] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today, 28 July 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Bridgestone Earthmover Tyres Pty Ltd applied to Fair Work Australia for the termination of the Queensland Fertilizer Project Phosphate Hill Bridgestone Earthmover Tyres Pty Ltd Partnership Certified Agreement 1997. The dispute arose from a breakdown in the industrial relationship between the employer and the employees, leading to an impasse in negotiations over a new agreement. The case was heard by the Full Bench of Fair Work Australia, which was tasked with determining whether the conditions for terminating the existing agreement were met.

The legal issues before the court centred on whether the criteria for terminating the certified agreement under section 241 of the Fair Work Act 2009 were satisfied. Specifically, the court had to determine if the parties had genuinely tried to resolve their differences through conciliation and if the existing agreement had resulted in an industrial dispute that could not be resolved. The applicant argued that the existing agreement had led to significant disputes and that the parties had made genuine efforts to negotiate a new agreement without success.

The Full Bench found that the applicant had not established that the existing agreement had resulted in an industrial dispute that could not be resolved through conciliation. The court noted that the employer and employees had engaged in negotiations over a new agreement and that the applicant had not demonstrated that the existing agreement was the source of the industrial dispute. Consequently, the application for termination was dismissed. The Full Bench emphasised the importance of genuine efforts in conciliation and the need for clear evidence linking the existing agreement to the unresolved industrial dispute.

The Full Bench ordered that the application for termination of the Queensland Fertilizer Project Phosphate Hill Bridgestone Earthmover Tyres Pty Ltd Partnership Certified Agreement 1997 be dismissed. The decision highlighted the stringent requirements for terminating a certified agreement and the need for the applicant to meet the criteria under the Fair Work Act. The case serves as a reminder of the importance of thorough conciliation efforts and the necessity for clear evidence in termination applications.

Bridgestone Earthmover Tyres Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established