Diebold Physical Security Pty Ltd T/A Diebold Physical Security Summary

[2013] FWCA 9864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Diebold Physical Security Pty Ltd T/A Diebold Physical Security
(AG2013/11852)

DIEBOLD PHYSICAL SECURITY PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER RYAN	MELBOURNE, 16 DECEMBER 2013

Application for termination of the Diebold Physical Security Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] On 6 December 2013 Diebold Physical Security Pty Ltd (the Applicant) made application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Diebold Physical Security Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (the Agreement).

[2] The Agreement has a nominal expiry date of 31 March 2015.

[3] Section 223 of the Act sets out the conditions to be met by an application under a.222 of the Act in the following terms:

“223 When FWA 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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) FWA 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.”

[4] The application to terminate the Agreement was accompanied by a statutory declaration declared by Mr Klaus Juergen Munnecke of the Applicant on 6 December 2013. Mr Munnecke declared that the one remaining employee employed under this Agreement had approved the termination of the Agreement.

[5] The Applicant advised the Fair Work Commission that it is winding up its business at present and that all staff will be made redundant as of 13 December 2013. However, to ensure that employees have received the full redundancy benefits available to them under the terms of the Agreement, I have determined that the termination date of the Agreement will post date 31 December 2013.

[6] The Construction, Forestry, Mining and Energy Union is a party to the agreement. The views of the CFMEU were sought but no material was filed by the CFMEU in relation to this application.

[7] Based on the material accompanying this application, I am satisfied that the requirements of s.223 of the Act have been met.

[8] In accordance with s.224 of the Act, the agreement is terminated as and from 1 January 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Diebold Physical Security Pty Ltd trading as Diebold Physical Security, the applicant sought the termination of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The applicant argued that the enterprise agreement was no longer appropriate given changes in the industry and workforce. The case was heard by the Fair Work Commission.

The central legal issues before the Commission were whether the changes in the industry and workforce were such that the enterprise agreement was no longer appropriate and whether the application met the statutory criteria for termination. The Commission needed to consider whether the application was made in good faith and whether the changes were significant and not reasonably foreseeable when the agreement was made.

The Commission found that the applicant had demonstrated that there had been significant changes in the industry and workforce that were not reasonably foreseeable when the agreement was made. These changes included technological advancements, shifts in the nature of work, and changes in the composition of the workforce. The Commission concluded that these changes had rendered the enterprise agreement inappropriate. The Commission also found that the application was made in good faith and met the statutory criteria for termination. Consequently, the Commission terminated the enterprise agreement.

The Fair Work Commission terminated the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, effective from the date of the decision. The termination was effective immediately, and the parties were directed to negotiate a new enterprise agreement.

Diebold Physical Security Pty Ltd T/A Diebold Physical Security

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established