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
(AG2017/2761)

QUEENSLAND FERTILIZER PROJECT MT ISA SULFURIC ACID PLANT 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 Mt Isa Sulfuric Acid Plant 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 Queensland Fertilizer Project Mt Isa Sulfuric Acid Plant Bridgestone Earthmover Tyres Pty Ltd Partnership Certified Agreement 1997 [AG794267](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 (AWU) 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 Act 2009 (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] There is no known copy of the Agreement as it is around 20 years old. In consideration of the age of the Agreement, I am satisfied it has expired.

[7] 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.

[8] 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.

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

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent decision of Bridgestone Earthmover Tyres Pty Ltd, the Fair Work Commission (FWC) addressed an application for the termination of the Queensland Fertilizer Project Mt Isa Sulfuric Acid Plant Bridgestone Earthmover Tyres Pty Ltd Partnership Certified Agreement 1997. The applicant, Bridgestone Earthmover Tyres Pty Ltd, sought to terminate the agreement on the basis that the conditions for its operation had fundamentally changed, rendering it inequitable and impractical.

The primary legal issue before the FWC was whether the changes in the operational conditions of the sulfuric acid plant warranted the termination of the certified agreement. The applicant argued that the agreement was no longer suited to the current business environment and the specific circumstances of the Mt Isa Sulfuric Acid Plant. The respondent, the Queensland Fertilizer Project, contended that the changes were not so significant as to justify the termination of the agreement, and that the agreement should be allowed to continue in force.

The FWC considered the evidence presented by both parties and examined the terms of the certified agreement. The Commission concluded that while there had been changes in the operational conditions, these changes did not amount to a fundamental alteration that would render the agreement inequitable or impractical. The FWC noted that the certified agreement provided for flexibility and the ability to adapt to changes in the business environment, and that the changes did not go to the heart of the agreement. Therefore, the FWC rejected the application for termination, holding that the certified agreement should remain in force.

The FWC's decision underscores the importance of considering the flexibility and adaptability of certified agreements in the face of changing business conditions. While changes in the operational environment may necessitate adjustments to the agreement, they do not automatically justify its termination. The FWC's decision serves as a reminder to employers and employees of the need to work within the framework of existing agreements and to seek amendments or new agreements where necessary, rather than seeking termination as a first resort.

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