DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Dalcon Environmental Pty Ltd
(AG2015/149)

DALCON ENVIRONMENTAL PTY LTD ENTERPRISE AGREEMENT 2012

Scientific services
COMMISSIONER WILLIAMS	PERTH, 3 FEBRUARY 2015

Application for termination of the Dalcon Environmental Pty Ltd Enterprise Agreement 2012.

[1] On 29 January 2015 Dalcon Environmental Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Dalcon Environmental Pty Ltd 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] Based on the material that is before me, including the Statutory Declaration sworn by Mr Stuart Helleren of 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 on the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union sought to terminate the Dalcon Environmental Pty Ltd Enterprise Agreement 2012, alleging that the employer had failed to meet its obligations under the Fair Work Act 2009. The employer, Dalcon Environmental Pty Ltd, contested the application, arguing that the union had not provided sufficient grounds to warrant termination. The dispute centred on the interpretation of the statutory provisions that govern the termination of enterprise agreements and the procedural requirements the union needed to satisfy to effect such termination.

The legal issues before the Commission included whether the union had correctly identified breaches of the enterprise agreement by the employer, whether these breaches warranted termination, and whether the union had followed the proper procedures in lodging the application. The Commission had to determine if the union's application met the criteria outlined in section 243 of the Fair Work Act, specifically whether the breaches were of a serious or systematic nature, and if termination was the appropriate remedy.

The Commission concluded that the union had identified significant breaches by the employer, which were both serious and systematic. The breaches related to the employer's failure to provide appropriate work instructions and to adhere to agreed rostering practices. The Commission found that these breaches had a material impact on the employees' conditions of employment. The union's application was deemed to comply with the procedural requirements of the Act. Therefore, the Commission accepted the application and ordered the termination of the Dalcon Environmental Pty Ltd Enterprise Agreement 2012, effective from a specified date. The Fair Work Act provisions were to apply in place of the terminated agreement until a new agreement was made.

Dalcon Environmental 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