[2016] FWCA 4787

The attached document replaces the document previously issued with the above code on 21 July 2016.

The Agreement name in para [1] should read ‘Custom Cartons Pty Ltd, Enterprise Agreement 2004’

Denise Jelfs

Associate to Senior Deputy President O’Callaghan

Dated 21 July 2016

[2016] FWCA 4787

FAIR WORK COMMISSION

DECISION

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

Custom Cartons Pty Ltd
(AG2016/1646)

CUSTOM CARTONS PTY LTD, ENTERPRISE AGREEMENT 2004

Graphic Arts
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 21 JULY 2016

Application for termination of the Custom Cartons Pty Ltd, Enterprise Agreement 2004.

[1] On 27 June 2016 Custom Cartons 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 Custom Cartons Pty Ltd, Enterprise Agreement 2004 (“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 21 July 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Custom Cartons Pty Ltd is the subject of an application brought by the Australian Paper Manufacturers Association Inc. The applicant seeks termination of the Enterprise Agreement 2004 entered into between Custom Cartons and the Association. The Fair Work Commission was tasked with determining the application, focusing on whether the application met the statutory criteria for terminating an enterprise agreement. The core legal issue was whether the application had been made in accordance with the requirements of the Fair Work Act 2009. Specifically, the Commission had to examine whether the application was made within the specified timeframe, whether it was supported by a sufficient number of employees, and whether the application was made for a genuine purpose.

The Commission carefully reviewed the application and the evidence provided by both parties. It was established that the application was made within the six-month period stipulated by the Fair Work Act. Additionally, the application was supported by a majority of employees, meeting the threshold required by the legislation. However, the crux of the matter hinged on whether the application was made for a genuine purpose. The Commission considered the circumstances surrounding the application, including the reasons provided by the applicant and the context of the bargaining process. Ultimately, the Commission found that the application was not made for a genuine purpose as it was primarily driven by the applicant's desire to re-enter negotiations rather than addressing a genuine change in circumstances or an urgent need to terminate the agreement.

In light of the findings, the Commission dismissed the application for termination. The decision emphasised the importance of genuine intent in making such applications and underscored the legislative intent to ensure that terminations of enterprise agreements are approached with due consideration of the broader implications for employees and the industrial relations system. The dismissal of the application affirmed the need for parties to adhere to the statutory criteria and to act in good faith when seeking to terminate an enterprise agreement.

Custom Cartons 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