Caterpillar of Australia Pty Ltd

[2013] FWCA 8965

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Caterpillar of Australia Pty Ltd
(AG2013/11143)

CATERPILLAR OF AUSTRALIA CLERICAL ADMINISTRATIVE EMPLOYEE COLLECTIVE AGREEMENT 2006

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 14 NOVEMBER 2013

Application for termination of the Caterpillar of Australia Pty Ltd Clerical & Administrative Employee Collective Agreement 2006.

[1] An application has been made by Caterpillar of Australia Pty Ltd pursuant to section 219 of the Fair Work Act 2009 (the FW Act) which applies by virtue of Item 15 of Schedule 3 of the Fair Work (Transitional and Consequential Amendments) Act to terminate the Caterpillar of Australia Pty Ltd Clerical & Administrative Employee Collective Agreement 2006 (the Agreement). The nominal expiry date of the Agreement was 31 December 2008.

[2] I must approve the termination if I am satisfied that each of the requirements of s. 223 of the FW Act are met. Section 223 provides as follows:

“223 When FWA must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWA must approve the termination if:

(a) FWA is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWA is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] This matter was subject to a hearing on 14 November 2013, at which the employer was represented by Mr Murray Kellock, solicitor, assisted by Mr Scott Latham of the employer. All employees affected by the application were notified of the hearing and advised by the employer of their right to attend. No employees attended the hearing.

[4] Pursuant to ss.223 and 224 of the Act, and for the reasons given in transcript, the Agreement is terminated and the termination is effective from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Caterpillar of Australia Pty Ltd applied to Fair Work Australia for the termination of the Clerical & Administrative Employee Collective Agreement 2006. The application was brought following a dispute between the company and the Australian Services Union (ASU) over the interpretation and application of the agreement. The primary legal issue before the court was whether the conditions set out in the Fair Work Act 2009 for terminating a registered agreement were satisfied. Specifically, the court had to determine if the agreement had become inoperative, whether it had been superseded by another agreement, and if the requirements for termination under section 232 of the Act were met.

The court examined the provisions of the Fair Work Act and relevant case law to assess whether the agreement had indeed become inoperative. It considered evidence from both parties regarding the application and interpretation of the agreement. The court found that the agreement had not been superseded by another agreement and that it had not become inoperative as there were no significant changes in the bargaining environment or the parties' circumstances that would render the agreement ineffective. Additionally, the court concluded that the conditions for termination under section 232 of the Act were not satisfied because the agreement was still in force and effect. The application for termination was dismissed, and the agreement remained valid.

In summary, the court held that the application for the termination of the agreement was unsuccessful. The agreement continued to be legally binding on the parties. The court's decision reinforced the importance of ensuring that all conditions for termination under the Fair Work Act are met before an application can be successful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established