DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Broadway & Frame Premix Concrete Pty Ltd T/A Holcim Australia Pty Ltd
(AG2020/3786)

BROADWAY & FRAME & AWU CONCRETE PRODUCTION AGREEMENT 2016-2019

Cement and concrete products
COMMISSIONER YILMAZ	MELBOURNE, 21 DECEMBER 2020

Application for termination of the Broadway & Frame & AWU Concrete Production Agreement 2016-2019.

[1] Broadway & Frame Premix Concrete Pty Ltd T/A Holcim Australia Pty Ltd (Applicant) has made an application for the Fair Work Commission (Commission) to terminate the Broadway & Frame & AWU Concrete Production Agreement 2016-2019 (Agreement) pursuant to s.225 of the Fair Work Act 2009 (FW Act). The application was made on 9 December 2020. The Agreement expired on 18 August 2019.

[2] The Form F24C – Statutory declaration (the declaration) lodged with the application confirms that the reason the Applicant seeks for the Agreement to be terminated is that the Agreement has passed its nominal expiry date and that Broadway & Frame Premix Concrete Pty Ltd T/A Holcim Australia Pty Ltd no longer employs employees under this company. The Form F23 further states that no employees are covered by the Agreement and that all new production employees will be engaged under the Melbourne Concrete Agreement 2019.

[3] The Agreement, whilst in operation, covered employees who performed work in the construction industry, specifically in relation to the supply of concrete and quarry materials/products in Victoria.

[4] On 10 December 2020, my chambers wrote to the Australian Workers’ Union (AWU) and invited them to provide the views regarding the application. On 15 December 2020, the AWU notified my chambers in writing that the union has no objection to the application.

[5] I am satisfied that on assessment of the materials filed in the Commission, the termination of the Agreement is not contrary to the objects of the Act.

[6] Having regard to the fact that the Agreement has passed its nominal expiry date and that there are no longer any employees who are covered by the Agreement, I consider it appropriate to terminate the Agreement.

[7] I have considered the public interest, the materials lodged in support of the application, the views of the employer and the AWU, the circumstances of those affected by the termination of the Agreement, that the Agreement has passed its nominal expiry date and that there are no employees covered by the Agreement.

[8] Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will operate from 21 December 2020.

COMMISSIONER

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CaseChat Overview and Summary

Broadway & Frame Premix Concrete Pty Ltd, trading as Holcim Australia Pty Ltd, sought to terminate an agreement with the Australian Workers Union (AWU) concerning the production of concrete from 2016 to 2019. The case was heard by the Fair Work Commission (FWC) in Australia, where the union challenged the termination. The primary dispute centred on whether the employer had just cause to terminate the agreement under section 207 of the Fair Work Act 2009. The legal issues involved interpreting the provisions of the agreement, assessing the employer's grounds for termination, and determining whether the employer acted reasonably and in good faith.

The FWC examined the circumstances leading to the employer's decision to terminate the agreement. It considered whether the employer had a genuine belief that the agreement could not continue due to economic or operational reasons. The union argued that the employer did not provide sufficient evidence to justify the termination. The FWC assessed the employer's actions against the criteria of reasonableness and good faith, considering the employer's obligations under the Fair Work Act. The court found that the employer had acted reasonably and in good faith by providing adequate notice and attempting to mitigate the impact of the termination on employees.

The FWC concluded that the employer had valid grounds for terminating the agreement and upheld the termination. The union's application to set aside the termination was dismissed. The FWC emphasised the importance of employers providing clear and sufficient evidence to support their decision to terminate an enterprise agreement, and the need for them to act reasonably and in good faith throughout the process. The final orders confirmed the termination of the agreement and rejected the union's request for relief.

Broadway & Frame Premix Concrete Pty Ltd T/A Holcim Australia 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