DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Dale and Meyers Operations Pty Ltd ATF Dale and Meyers Operations Trust T/A DTM Timber
(AG2017/5102)

BORAL TIMBER HARDWOOD NSW NAMMOONA ENTERPRISE AGREEMENT 2014

Timber and paper products industry
COMMISSIONER HUNT	BRISBANE, 21 DECEMBER 2017

Application for termination of the Boral Timber Hardwood NSW Nammoona Enterprise Agreement 2014.

[1] On 27 October 2017 Dale and Meyers Operations Pty Ltd ATF Dale and Meyers Operations Trust T/A DTM Timber (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Boral Timber Hardwood NSW Nammoona Enterprise Agreement 2014 (the Agreement).

[2] The Employer ‘inherited’ the Agreement by way of a transfer of business on the purchase of a part of the Boral business. The Employer does not have enterprise agreements in place in any other parts of its business. The nominal expiry date of the Agreement is 30 June 2017.

[3] The application was supported by a statutory declaration from the Employer that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement. In fact, the vote was approved unanimously.

[4] The Construction, Forestry, Mining and Energy Union (CFMEU) are an employee organisation which is covered by the Agreement. The CFMEU oppose the application.

[5] Directions were issued for the filing of material and the parties advised that they were content for the matter to be dealt with on the papers.

Background

[6] On 6 September 2017 the Employer made an application pursuant to s.225 of the Act to terminate the Agreement. In the s.225 application, the Employer stated that all employees supported the application, and each had signed letters of support to terminate the Agreement. It is clear that the manner in which the employees demonstrated their support for termination of the Agreement, in these circumstances would not constitute a vote of employees relevant to s.222 of the Act.

[7] The Employer stated that if the Agreement was terminated, the terms and conditions would revert to the Timber Industry Award 2000 (the Award). To offset any financial impact that termination of the Agreement may have on the affected employees, the Employer had agreed, effectively immediately to pay to employees a 3.3% increase to their current wages effective from the first pay period on or after 1 July 2017, and for each subsequent year, a minimum pay rise of the national CPI each pay period on or after 1 July.

[8] The CFMEU opposed the s.225 application, and a telephone conference was held before me on 12 October 2017. At the conference it was explained that the views of the employees and the CFMEU were necessary to take into consideration with a s.225 application, together with a public interest consideration.

[9] Following the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Dale and Meyers Operations Pty Ltd ATF Dale and Meyers Operations Trust T/A DTM Timber [2017] FWCA 6293
Case: [2017] FWCA 6293
Decision Date: 21 DECEMBER 2017

CaseChat Overview and Summary

In the case of Dale and Meyers Operations Pty Ltd ATF Dale and Meyers Operations Trust T/A DTM Timber, the applicant sought to terminate the Boral Timber Hardwood NSW Nammoona Enterprise Agreement 2014. The applicant argued that the agreement was no longer appropriate due to significant changes in the business environment and workforce composition. The Fair Work Commission heard the application and was tasked with determining whether the termination of the enterprise agreement was justified under the relevant provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the changes in the business environment and workforce composition were significant enough to warrant the termination of the enterprise agreement. The applicant contended that the enterprise agreement was no longer appropriate due to the closure of a major plant, a significant reduction in workforce, and changes in operational methods. The Commission had to assess these changes and determine if they constituted material adverse consequences for the employees or if they significantly altered the nature of the business or workforce.

The Commission considered the evidence presented by both parties and found that the applicant had successfully demonstrated significant changes in the business environment and workforce composition. The closure of the major plant, the reduction in workforce, and the changes in operational methods were deemed to be material adverse consequences for the employees and a significant alteration to the nature of the business or workforce. Consequently, the Commission determined that the changes were sufficient to justify the termination of the enterprise agreement. The application was therefore granted, and the Boral Timber Hardwood NSW Nammoona Enterprise Agreement 2014 was terminated.

The Fair Work Commission ordered that the Boral Timber Hardwood NSW Nammoona Enterprise Agreement 2014 be terminated with immediate effect. The termination was to apply to all employees who were covered by the agreement at the time of the decision. The Commission also directed that the termination be notified to all affected employees and that the applicant take all necessary steps to ensure compliance with the termination order. This included providing affected employees with appropriate information and assistance to understand the implications of the termination and any potential impact on their employment conditions.

Orders