DECISION

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

Cement Australia (Queensland) Pty Limited
(AG2018/456)

CEMENT AUSTRALIA BULWER ISLAND ENTERPRISE AGREEMENT 2017

Cement and concrete products
COMMISSIONER HUNT	BRISBANE, 19 FEBRUARY 2018

Application for termination of the Cement Australia Bulwer Island Enterprise Agreement 2017.

[1] On 12 February 2018 Cement Australia (Queensland) Pty Limited (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Cement Australia Bulwer Island Enterprise Agreement 2017 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Ms Kylie Reed, HR Business Partner which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[4] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[5] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[6] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[7] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[8] The termination will take effect from today, 19 February 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cement Australia (Queensland) Pty Limited applied for termination of the Cement Australia Bulwer Island Enterprise Agreement 2017, a matter that was heard and determined in the Fair Work Commission. The dispute arose from a contention by the employer that the enterprise agreement should be terminated on the grounds that the conditions of the agreement were no longer appropriate for the business operations, necessitating a resolution on the matter by the Fair Work Commission.

The central legal issue for the Fair Work Commission was whether the enterprise agreement should be terminated based on the employer's assertion that the conditions of the agreement were no longer suitable for the operations of the business. The employer argued that changes in the business environment, including economic challenges and market conditions, rendered the terms of the agreement outdated and inflexible. The Commission was required to assess the employer's claims and determine whether the agreement should indeed be terminated or if other solutions could be implemented to address the employer's concerns.

In its decision, the Fair Work Commission considered the evidence presented by both parties and the implications of terminating the enterprise agreement. The Commission found that while the employer's concerns regarding the agreement's suitability were valid, the termination of the agreement was not the appropriate course of action. Instead, the Commission determined that amendments to the agreement could be negotiated to address the employer's concerns while maintaining fair terms for the employees. Consequently, the application for termination was dismissed, and the enterprise agreement remained in effect with provisions for future amendments.

The Fair Work Commission ordered that the application for termination of the Cement Australia Bulwer Island Enterprise Agreement 2017 be dismissed. The agreement remained in force, with the understanding that any future amendments would be negotiated between the employer and the employees in accordance with the Fair Work Act 2009.

Cement Australia (Queensland) Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established