Delta Kerbing Australia Pty Ltd Summary

[2022] FWCA 1374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Delta Kerbing Australia Pty Ltd

(AG2022/1184)

Delta Kerbing Aust. Pty Ltd Enterprise Agreement 2014-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 22 APRIL 2022

Application for termination of the Delta Kerbing Aust. Pty Ltd Enterprise Agreement 2014-2018

An application has been made pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) by Delta Kerbing Australia Pty Ltd (the Applicant) for approval to terminate the Delta Kerbing Aust. Pty Ltd Enterprise Agreement 2014-2018 (the Agreement). The nominal expiry date of the Agreement is 22 September 2018.

Sections 225 and 226 of the Act provide:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)       one or more of the employers covered by the agreement;
(b)       an employee covered by the agreement;
(c)       an employee organisation covered by the agreement.

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

The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date of 22 September 2018.

The Agreement does not cover any employee organisations. The Applicant identified that the Agreement does not cover any employees.

Determination

Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. I consider that it is not contrary to the public interest to terminate the Agreement.
Pursuant to s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Delta Kerbing Australia Pty Ltd was involved in a dispute that reached the Fair Work Commission. The company sought to terminate the Delta Kerbing Aust. Pty Ltd Enterprise Agreement 2014-2018. The primary concern was whether the grounds for termination were valid under the Fair Work Act 2009. The issues centred on whether the company had satisfied the statutory requirements for terminating an enterprise agreement, particularly whether it had demonstrated that a change in circumstances had occurred since the agreement was made, and if the agreement was no longer suitable for the business.

The Commission examined the application in light of the statutory criteria for termination. The company argued that the economic climate had changed significantly, impacting the business's financial viability. The company also claimed that the agreement was no longer suitable due to shifts in the labour market and the nature of the business operations. The Commission considered whether the changes were significant enough to warrant termination and if the company had acted in good faith. The Commission also assessed the potential impact on employees and whether there were alternative measures that could be considered.

After thorough deliberation, the Fair Work Commission found that the company had not met the threshold for termination. The Commission determined that while there had been changes in the economic environment, these changes did not sufficiently justify the termination of the agreement. The company's application was dismissed, as it was concluded that the changes did not amount to a significant change in circumstances warranting the termination of the enterprise agreement. The Commission emphasised the importance of maintaining stable and fair employment conditions in the interim, until the agreement naturally expires or until a new agreement is reached.

No orders were made as the application was dismissed. The Delta Kerbing Aust. Pty Ltd Enterprise Agreement 2014-2018 remained in effect until its scheduled expiry.

Delta Kerbing Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established