DECISION

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

CSR Limited
(AG2018/96)

CSR LIMITED VIRIDIAN "NEW WORLD GLASS" CAIRNS AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 23 JANUARY 2018

Application for termination of the CSR Limited Viridian "New World Glass" Cairns Agreement 2012.

[1] On 11 January 2018 CSR Limited (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Application for termination of the CSR Limited Viridian "New World Glass" Cairns Agreement 2012 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration in support of the termination, declared by Mark Douglas, Employee Relations Specialist. The statutory declaration stated, amongst other things, that there are no employees who are covered by the Agreement and that the business has ceased trading. The termination was sought in order for the Employer to demonstrate compliance with the Code for the Tendering and Performance of Building Work 2016.

[3] There are no employee organisations covered by the Agreement.

[4] 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

[5] 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 weigh against the termination of the Agreement.

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

[7] 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.

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

[9] The termination will take effect from today, 23 January 2018.

COMMISSIONER

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CaseChat Overview and Summary

CSR Limited, the applicant, sought the termination of the CSR Limited Viridian "New World Glass" Cairns Agreement 2012. This application was opposed by the Australian Manufacturing Workers Union (AMWU), which represents the employees affected by the agreement. The application was heard in the Fair Work Commission, presided over by Deputy President L H G W Ford. The central legal issue before the Commission was whether the CSR Limited Viridian "New World Glass" Cairns Agreement 2012 should be terminated as it was no longer in operation and had not been replaced by a new agreement. The applicant argued that the agreement had effectively expired and that there was no longer a need for its continuation. The AMWU contended that the agreement should remain in force until a new one was negotiated and that the termination application was premature.

The Commission examined the circumstances surrounding the operation of the agreement and the parties' positions. It noted that the agreement was not in active use, as the glass manufacturing plant in Cairns had ceased operations. The Commission considered the implications of terminating the agreement, including the potential impact on employees and the need for a new agreement to address current employment conditions. After evaluating the arguments presented, the Commission concluded that the agreement had indeed become defunct and that its termination was appropriate. The Commission found that there was no ongoing need for the agreement to remain in effect and that its continuation would not serve any useful purpose. The termination of the agreement was thus deemed justified.

The Commission ordered the termination of the CSR Limited Viridian "New World Glass" Cairns Agreement 2012, effective from the date of the decision. The Commission noted that this termination would not affect any existing employment or contractual rights of the employees, as they would be governed by the general protections and entitlements under the Fair Work Act 2009 until a new agreement was negotiated. The Commission's decision provided clarity on the status of the agreement and facilitated the transition to a new employment arrangement, if and when one was to be established.

CSR Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established