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

CaseChat Overview and Summary

Dexion Commercial (Australia) Pty Ltd recently faced a legal challenge in the Fair Work Commission, as an application was made to terminate the Dexion Commercial (Australia) Pty Ltd Enterprise Agreement 2013. The applicant sought to terminate the agreement on the grounds that it was no longer appropriate, given significant changes in the business environment and the workforce. The case centred on the application's ability to demonstrate that the enterprise agreement could no longer be considered appropriate due to changed circumstances, as required by section 231 of the Fair Work Act 2009.

The legal issues before the Commission involved interpreting the criteria for determining the appropriateness of an enterprise agreement under the Fair Work Act. The central question was whether the applicant had sufficiently demonstrated that the enterprise agreement was no longer appropriate, considering the substantial changes in the business and workforce. The Commission had to assess the evidence provided regarding the changed circumstances and determine if these changes warranted the termination of the existing agreement.

In its decision, the Commission examined the evidence presented by the applicant and concluded that the significant changes in the business environment and workforce did indeed render the enterprise agreement no longer appropriate. The Commission found that the applicant had met the threshold for demonstrating changed circumstances, leading to the decision to terminate the agreement. This outcome was based on a detailed analysis of the evidence and a careful consideration of the legal criteria set out in the Fair Work Act.

The final orders of the Commission were that the Dexion Commercial (Australia) Pty Ltd Enterprise Agreement 2013 be terminated, effective from the date of the decision. The decision also provided for the continuation of certain terms and conditions of employment under the applicable award until such time as a new enterprise agreement was negotiated or until further orders of the Commission.

Dexion Commercial (Australia) 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