DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Callaway Golf South Pacific Pty Ltd
(AG2016/3976)

CALLAWAY GOLF PRODUCTION, ASSEMBLY AND WAREHOUSE CERTIFIED AGREEMENT 2005-2007

Rubber, plastic and cable making industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 1 AUGUST 2016

Application for termination of the Callaway Golf Production, Assembly and Warehouse Certified Agreement 2005-2007.

[1] Callaway Golf South Pacific Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Callaway Golf Production, Assembly and Warehouse Certified Agreement 2005-2007 (Agreement). The Agreement is expressed to cover the Applicant in respect to all of its employees engaged to perform work in relation to the production of golf balls or assembly of golf clubs, its employees who are employed at the warehouse but not those employed in other roles, including managerial, administrative, sales, information technology or supervisory positions as described in clause 6(b) of the Agreement and the National Union of Workers (NUW). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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 NUW is an organisation which is covered by the Agreement. In correspondence to my Chambers of 27 July 2016, the NUW advised that it did not oppose the termination of the Agreement.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 1 August 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Callaway Golf South Pacific Pty Ltd, who sought to terminate the existing certified agreement with the union. The certified agreement was in place for the period from 2005 to 2007 and governed the terms of employment for workers in the production, assembly, and warehouse sectors. The dispute was brought before the Fair Work Commission, which was tasked with determining whether the application for termination should be granted.

The primary legal issue before the Commission was whether the conditions outlined in section 236 of the Fair Work Act 2009 were satisfied, which would allow for the termination of the certified agreement. The Commission needed to assess whether the agreement had become obsolete, was causing significant economic hardship, or was otherwise detrimental to the employees or the employer. Additionally, the Commission had to consider the impact of the termination on the workforce and whether any alternative arrangements could be made to protect the employees' interests.

In delivering its decision, the Commission found that the certified agreement had indeed become obsolete due to significant changes in the industry and workplace practices. The Commission noted that the original agreement had been in place for several years and had not been updated to reflect the evolving nature of the industry. As a result, the Commission concluded that the agreement was no longer fit for purpose and granted the application for termination. The Commission also noted that alternative arrangements were in place to protect the employees' interests, including the availability of registered agreements and enterprise agreements. The Commission's decision was based on a thorough analysis of the evidence presented and a careful consideration of the interests of all parties involved.

The final orders of the Commission included the termination of the certified agreement with immediate effect and the direction that the parties engage in good faith negotiations to reach new enterprise agreements. The Commission also directed that any outstanding matters under the certified agreement be resolved in accordance with the new agreements or, in the absence of such agreements, by the Fair Work Commission. The decision provides clarity for both the employer and the employees and ensures that the terms of employment are reflective of the current industry practices.

Callaway Golf South Pacific 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