Caterpillar Underground Mining Pty Ltd

[2019] FWC 3405

[2019] FWC 3405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Caterpillar Underground Mining Pty Ltd

(AG2019/1081)

Commissioner Lee MELBOURNE, 16 MAY 2019

Application for termination of the CAT UGM Workplace Agreement 2014 - 2018.

1. An application has been made by Caterpillar Underground Mining Pty Ltd (the Applicant) to terminate the CAT UGM Workplace Agreement 2014 – 2018 (the Agreement) under section 225 of the Fair Work Act 2009 (the Act).

1. The Agreement has a nominal expiry date of 30 June 2018.

1. The matter for determination is whether or not to grant the application to terminate the Agreement.

Background to the application

1. This application was lodged with the Fair Work Commission (the Commission) on 8 April 2019. The employer’s statutory declaration filed with the application contained information relevant to the views of the employer, the effect of the termination of the employer and employees and matters relevant to the public interest consideration.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is covered by the Agreement.  On 12 April 2019, my chambers wrote to the AMWU asking if they object or consent to the application. No response was forthcoming.  Subsequently, the matter was listed for a telephone hearing. Mr Sean Howe of the AMWU attended the hearing as did Mr Brett Smith from the Applicant.

The law to be applied

1. 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;”

(c) an employee organisation covered by the agreement.

1. 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.”

1. The application to terminate the Agreement was made by the employer who is covered by the Agreement, consistent with s. 225(a) of the Act.

1. A statutory declaration was made by Mr Smith (Human Recourses Manager for the Applicant) which accompanied application. Relevantly, Mr Smith stated in answer to Q2.1 and Q2.3 of the statutory declaration that the Applicant ceased production in Australia on 18 December 2015. Further, all job classifications covered under the scope of the Agreement became redundant and in accordance with the Agreement, employees receieved redundancy payments or applied for and were successful in securing an alternative position outside the scope of the Agreement. From June 2016 onwards, there has been no employees covered by the Agreement. Termination of this Agreement will have no impact or disadvantage individuals in any way. There would also be no impact to the Applicant if the Agreement is terminated. Mr Smith also states that there are no employees covered by the Agreement and therefore, there will be no impact to the employee group. Further, the termination is part of an administrative process to finalise any outstanding issues relating to the cessation of manufacturing of underground hard rock mining vehicles in Burnie Tasmania.

1. In considering whether it is appropriate to terminate the Agreement, I have considered the views of the AMWU, an employee organisation covered by the Agreement. The AMWU do not oppose the termination of of the Agreement on the basis of the assurance from Mr Smith that there were no plans to reinstate the business in Tasmania. The AMWU did not contest the factual circumstances attested by Mr Smith. There are no employees covered by the Agreement and therefore, it is apparent that the termination will have no effect on employees pursuant to s. 226 (b)(ii) of the Act.

1. Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied that in accordance with s.226(a) of the Act, it is not contrary to the public interest to terminate the Agreement.

1. Pursuant to s.225 of the Act, I have considered, and am satisfied as to each of the matters contained in s.226 of the Act.

1. I am satisfied that it is appropriate to approve the termination of the Agreement. Accordingly, the Agreement is terminated.

1. The termination will come into effect from 16 May 2019.

COMMISSIONER

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