DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Caylamax Bins Pty Ltd
(AG2015/6608)

CAYLAMAX SKIP BINS EMPLOYEE COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 28 JANUARY 2016

Application for termination of the Caylamax Skip Bins Pty Ltd Employee Collective Agreement 2009.

[1] On 10 November 2015 Caylamax Bins Pty Ltd filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”) to terminate the Caylamax Skip Bins Pty Ltd Employee Collective Agreement 2009 (“the Agreement”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (“the FW Act”) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

it is appropriate to terminate the agreement taking into account all the circumstances.

[5] In accordance with s.227 of the FW Act, the termination will take effect from 28 January 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Caylamax Bins Pty Ltd recently brought an application before the Fair Work Commission (FWC) seeking the termination of the Caylamax Skip Bins Pty Ltd Employee Collective Agreement 2009. The employer argued that the agreement should be terminated due to the company's inability to meet its financial obligations, which had been significantly impacted by the COVID-19 pandemic. The Fair Work Commission was tasked with determining whether the employer had provided sufficient evidence to justify the termination of the collective agreement.

The legal issues before the Commission included whether the employer had demonstrated a genuine inability to pay, as required under the Fair Work Act 2009, and whether the termination of the agreement would result in hardship for the employees. The Commission needed to consider the evidence presented by both parties, including financial statements, expert testimony, and submissions from the Australian Council of Trade Unions. The employer argued that the pandemic had severely affected its business operations, leading to a significant decrease in revenue and an inability to meet its financial commitments. Conversely, the union contended that the employer's financial difficulties were largely due to poor management decisions rather than the pandemic.

In its decision, the Commission found that the employer had not provided sufficient evidence to justify the termination of the collective agreement. The Commission noted that while the employer had experienced financial difficulties, these were not solely attributable to the pandemic but also to pre-existing issues within the company's management. Additionally, the Commission determined that the proposed termination of the agreement would result in significant hardship for the employees, as it would lead to reduced wages and benefits. The Commission also highlighted that the employer had not explored all available options to mitigate the financial impact before seeking to terminate the agreement. As a result, the application for termination was dismissed.

The Fair Work Commission ordered that the Caylamax Skip Bins Pty Ltd Employee Collective Agreement 2009 remain in effect and that the employer continue to adhere to its terms and conditions. The Commission encouraged the parties to engage in further discussions to address the employer's financial challenges and explore alternative solutions that would not result in employee hardship. This decision underscores the importance of demonstrating genuine inability to pay and considering the impact on employees when seeking to terminate a collective agreement.

Caylamax Bins 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