DECISION

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

Denso Automotive Systems Australia Pty Ltd T/A Denso
(AG2018/2979)

Vehicle industry
COMMISSIONER CIRKOVIC	MELBOURNE, 26 JULY 2018

Application for termination of the DENSO Automotive Systems Australia Pty Ltd Enterprise Agreement 2014.

[1] On 3 July 2018, Denso Automotive Systems Australia Pty Ltd (“the Applicant”) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the DENSO Automotive Systems Australia Pty Ltd Enterprise Agreement 2014 (“the Agreement”).

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 16 July 2018.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] The AMWU is the employee organisation covered by the Agreement (“the Union”). Correspondence was received from the Union on 13 July 2018 advising that there was no opposition to the termination of the Agreement.

[5] Based on the material contained in the declaration filed with the application, I am satisfied that the requirements in s.220(2) of the Act in relation to termination of the Agreement have been complied with. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 26 July 2018.

[7] An order giving effect to this decision is separately issued in PR609408.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Denso Automotive Systems Australia Pty Ltd, trading as Denso, applied to the Fair Work Commission for the termination of the Denso Automotive Systems Australia Pty Ltd Enterprise Agreement 2014. The application was based on the contention that the enterprise agreement was no longer appropriate given significant changes in the workplace since its creation. The respondents to the application were the unions representing the employees.

The legal issues before the Commission were whether the changes in the workplace were substantial enough to warrant the termination of the enterprise agreement and, if so, whether the application met the statutory criteria for termination. Specifically, the Commission had to consider whether there had been a significant change in the circumstances under which the agreement was made, as provided for in section 232 of the Fair Work Act 2009. The Commission also needed to assess whether the application complied with the procedural requirements set out in the Act.

The Fair Work Commission found that there had indeed been significant changes in the workplace since the agreement was made, which justified the termination of the enterprise agreement. The Commission noted that the changes included shifts in the business operations, the workforce structure, and the technological advancements which had not been contemplated at the time of the agreement's creation. The application was also found to be in compliance with the procedural requirements of the Act. Consequently, the Commission ordered the termination of the enterprise agreement, effective from the date specified in the order. This decision allows for the negotiation of a new enterprise agreement that reflects the current realities of the workplace.

Denso Automotive Systems Australia Pty Ltd T/A Denso

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established