Dexion Commercial (Australia) Pty Ltd

[2016] FWCA 7165

[2016] FWCA 7165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Dexion Commercial (Australia) Pty Ltd
(AG2015/5647)

DEXION (COMMERCIAL) AUSTRALIA PTY LIMITED - ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 7 OCTOBER 2016

Application for termination of the Dexion Commercial (Australia) Pty Ltd Enterprise Agreement 2013.

[1] On 25 September 2015 Dexion Commercial (Australia) Pty Ltd (the Applicant) made an application to terminate the Dexion Commercial (Australia) Pty Ltd Enterprise Agreement 2013 [AE405367] (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] The Agreement was past its nominal expiry date of 15 October 2014.

[3] Section 226 of the Act sets out the circumstances in which the Commission must terminate an agreement where an application has been made under s.225:

“226 When FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.”

[4] A statutory declaration by Andrew Angus, General Manager of the Applicant was filed.

[5] It stated that the manufacturing operation at Sunshine in Victoria was outsourced offshore in August 2014. All of the employees covered by the Agreement were therefore made redundant. The site is now a warehouse. The Agreement, which applied to the manufacturing operation therefore, no longer covers any employees.

[6] Due to an administrative error, the file was not received in my chambers until September 2016.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) which is covered by the Agreement has confirmed the circumstances and does not oppose the termination.

[8] In the circumstances, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to terminate the Agreement taking into account the matters referred to in s.226(b).

[9] Accordingly, I am satisfied that the requirements of the Act have been met and, therefore, pursuant to s.226 I must approve the termination of the Agreement.

[10] The application to terminate the Agreement is approved. It will come into effect from 7 October 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE405367  PR586152>