Cement Australia Pty Limited

[2014] FWCA 1360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Cement Australia Pty Limited
(AG2014/303)

CEMENT AUSTRALIA PTY LTD PACKAGED PRODUCTS OPERATORS BULWER ISLAND (QLD) ENTERPRISE AGREEMENT 2012

Cement and concrete products
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 25 FEBRUARY 2014

Application for termination of the Cement Australia Pty Ltd Packaged Products Operators Bulwer Island (Qld) Enterprise Agreement 2012.

[1] On 14 February 2014 Cement Australia Pty Limited filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Cement Australia Pty Ltd Packaged Products Operators Bulwer Island (Qld) Enterprise Agreement 2012 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When the FWC 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, the FWC must approve the termination if:

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

(d) the FWC 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] The application was supported by a statutory declaration from the employer that declared, among other things, that the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declaration provided by the employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Cement Australia Pty Limited, the applicant sought to terminate the Cement Australia Pty Ltd Packaged Products Operators Bulwer Island (Qld) Enterprise Agreement 2012. The application was heard in the Fair Work Commission, the primary federal workplace relations tribunal in Australia. The applicant argued that the enterprise agreement had become inoperative due to changes in the workforce, rendering the agreement no longer applicable to the majority of its workforce. The respondents, who included the relevant trade unions, contested the application, asserting that the changes in the workforce did not justify the termination of the enterprise agreement.

The central legal issue before the Fair Work Commission was whether the enterprise agreement had become inoperative due to the significant changes in the workforce, and therefore, whether it could be lawfully terminated. The Commission needed to consider the provisions of the Fair Work Act 2009 and associated regulations that govern the termination of enterprise agreements. Specifically, the Commission had to assess whether the changes in the workforce constituted a material change in circumstances that justified the termination of the agreement under section 239 of the Fair Work Act.

The Fair Work Commission, after considering the arguments and evidence presented by both parties, determined that the changes in the workforce did not amount to a material change in circumstances that warranted the termination of the enterprise agreement. The Commission found that while there had been changes in the workforce, these did not render the agreement inoperative, as there remained a sufficient connection between the parties to the agreement. Consequently, the application for termination was dismissed. The Commission emphasised the importance of the enterprise agreement as a tool for facilitating cooperative and productive industrial relations, and it was not willing to terminate the agreement on the basis of the changes in the workforce alone.

As a result of the Fair Work Commission's decision, the Cement Australia Pty Ltd Packaged Products Operators Bulwer Island (Qld) Enterprise Agreement 2012 remains in effect. The Commission's ruling ensures that the parties to the agreement continue to be bound by its terms and conditions, and it underscores the importance of maintaining stable and cooperative industrial relations. The applicant was ordered to pay the respondents' costs of and incidental to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established