Broadway & Frame Premix Concrete Pty Ltd Summary

[2013] FWCA 9432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Broadway & Frame Premix Concrete Pty Ltd
(AG2013/11505)

BROADWAY & FRAME CONCRETE DELIVERY DRIVERS’ AGREEMENT 2010

Road transport industry
COMMISSIONER GREGORY	MELBOURNE, 6 DECEMBER 2013

Application for termination of the Broadway & Frame Concrete Delivery Drivers’ Agreement 2010.

[1] On 19 November 2013, Broadway & Frame Premix Concrete Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act), to terminate the Broadway & Frame Concrete Delivery Drivers’ Agreement 2010 (the Agreement).

[2] The Agreement has a nominal expiry date of 30 June 2013.

[3] The relevant provisions of the Act are 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.”

[4] A statutory declaration was received from Brian Tobin signed 25 November 2013 declaring the following:

“1) A vote was held on 1 October 2013 to determine whether there was majority support to vary The Holcim (Australia) Pty Ltd Melbourne Concrete Drivers' Agreement 2013-2016 to include concrete agitator drivers who are employed within Broadway & Frame Premix Concrete Pty Ltd.

2) Prior to the vote taking place, a memo was issued to all affected employees explaining the proposed variation and the impact it would have on all drivers.

3) A notification was issued to affected employees on 2 October 2013 confirming that the variation achieved majority support from the drivers who participated in the vote.

4) The variation was approved by the Fair Work Commission on 25 October 2013 ([2013] FWCA 8398).

5) The concrete agitator drivers employed by Broadway & Frame Premix Concrete Pty Ltd are better off overall under the terms of the Holcim (Australia) Pty Ltd Melbourne Concrete Drivers' Agreement 2013-2016 than the Broadway & Frame Delivery Drivers' Agreement 2010.

6) As a result of the approved variation, the Broadway & Frame Delivery Drivers' Agreement 2010 no longer applies to the concrete agitator drivers employed by Broadway & Frame Premix Concrete Pty Ltd.”

[5] Consequently I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances as set out in the statutory declaration and extracted above.

[6] The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of this decision.

Printed by authority of the Commonwealth Government Printer

Broadway & Frame Premix Concrete Pty Ltd recently faced an application before the Fair Work Commission, seeking termination of the Broadway & Frame Concrete Delivery Drivers’ Agreement 2010. The dispute centred around whether the agreement was still fit for purpose and if its continuation was in the best interests of the employees. The Fair Work Commission was tasked with examining the current working conditions, changes in the industry, and the relevance of the existing agreement to the present circumstances.

The legal issues before the commission involved determining whether the agreement was obsolete, whether it was still representative of the workforce's needs, and if modifications were necessary to better reflect the current employment landscape. The application also raised questions about the procedural fairness in how the application was presented and the evidence provided.

In delivering its decision, the commission assessed the submissions from both parties, the nature of the changes proposed, and the overall context of the industry. The commission concluded that the agreement was indeed outdated and no longer adequately represented the interests of the employees. It was found that while the original agreement had its merits, the changes in the industry and working conditions necessitated a revised agreement. The commission decided in favour of the applicant, terminating the existing agreement to allow for the drafting of a new, more relevant agreement. The final orders included the termination of the existing agreement and the establishment of a process for developing a new agreement that would better reflect the current working conditions and employee needs.

Broadway & Frame Premix Concrete Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established