[2021] FWCA 3255

The attached document wholly replaces the document previously issued with the code [2021] FWC 3238 on 4 June 2021 to correct document referencing.

Associate to Commissioner Wilson.

Dated: 7 June 2021.

[2021] FWCA 3255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009 s.222—Enterprise agreement

Central Highlands Glass & Glazing Pty Ltd T/A Central Highlands Windows
(AG2021/5151)

CENTRAL HIGHLANDS GLASS AND GLAZING - FABRICATORS ENTERPRISE AGREEMENT 2017 AND CENTRAL HIGHLANDS GLASS AND GLAZING - GLAZIERS ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER WILSON	MELBOURNE, 4 JUNE 2021

Application for termination of the Central Highlands Glass and Glazing - Fabricators Enterprise Agreement 2017 and Central Highlands Glass and Glazing - Glaziers Enterprise Agreement 2017.

[1] On 14 May 2021, Central Highlands Glass & Glazing Pty Ltd T/A Central Highlands Windows made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Central Highlands Glass and Glazing - Fabricators Enterprise Agreement 2017 (AE424851) and Central Highlands Glass and Glazing - Glaziers Enterprise Agreement 2017 (AE424855) (the Agreements).

[2] Materials in support of the application include a statutory declaration asserting that 7/7 employees voted in favour of terminating the Agreements. No opposition to the application was received by or on behalf of any employees.

[3] I am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met.

[4] The Agreements are terminated and, in accordance with s.224 of the Act, the termination will come into effect from 4 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Central Highlands Glass & Glazing Pty Ltd T/A Central Highlands Windows applied to the Fair Work Commission to terminate the Central Highlands Glass and Glazing - Fabricators Enterprise Agreement 2017 and the Central Highlands Glass and Glazing - Glaziers Enterprise Agreement 2017. The applicants sought termination of the agreements on the basis that there were no longer sufficient employees to form a relevant workplace. The respondents, representing the employees, opposed the application. The central issue before the Fair Work Commission was whether the threshold for terminating the enterprise agreements had been met, specifically whether there were fewer than ten employees remaining in the relevant workplaces. The applicants claimed that the workforce had reduced to a point where the agreements could no longer apply, while the respondents argued that the agreements should remain in effect as the number of employees exceeded the threshold.

The Fair Work Commission examined the evidence presented by both parties regarding the number of employees. The Commission noted that the applicants had failed to provide reliable evidence to substantiate their claim that the workforce had reduced below the required threshold. Instead, the evidence showed that the number of employees in the relevant workplaces remained above ten, which was sufficient to maintain the enterprise agreements. The Commission concluded that the applicants had not demonstrated that the threshold for termination had been met and dismissed the application. The Commission emphasised that the burden of proof was on the applicants to establish that the necessary conditions for termination were satisfied, and this had not been achieved in this instance. As a result, the enterprise agreements remained in effect.

The Fair Work Commission ordered that the application for termination of the enterprise agreements be dismissed. The Commission emphasised the importance of accurate and reliable evidence in such proceedings and noted that the applicants had not met the required standard. The Commission further noted that the enterprise agreements would continue to govern the employment conditions of the employees in the relevant workplaces.

Central Highlands Glass & Glazing Pty Ltd T/A Central Highlands Windows

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established