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

[2013] FWCA 9865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Diebold Physical Security Pty Ltd T/A Diebold Physical Security
(AG2013/11845)

DIEBOLD PHYSICAL SECURITY PTY LTD COLLECTIVE BARGAINING WORKSHOP AGREEMENT 2010

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 16 DECEMBER 2013

Application to terminate the Diebold Physical Security Pty Ltd Collective Bargaining Workshop Agreement 2010.

[1] Application has been made by Diebold Physical Security Pty Ltd (the Applicant) for termination of the (the Agreement) made under the Fair Work Act 2009 (the Act)and which has passed its nominal expiry date of 30 June 2013.

[2] Section 226 of the Act provides that if an application for the termination of an enterprise agreement is made under s.225 of the Act, the Fair Work Commission (FWC) must terminate an enterprise agreement if:

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

(b) FWA 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.

[3] The Applicant has 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.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is the employee organisation covered by the Agreement. The views of the AMWU were sought in relation to this application. The AMWU has advised that it does not oppose the application and that it seeks that the termination date be post 31 December 2013.

[5] Pursuant to s.226 of the Act, I am satisfied that the termination of the Agreement would not be contrary to the public interest. I have considered the circumstances of the matter and have concluded that the termination of the Agreement is appropriate. Pursuant to s.227 of the Act, the Agreement is terminated and the termination takes effect from 1 January 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Diebold Physical Security Pty Ltd T/A Diebold Physical Security involved a dispute between the company and a union concerning the termination of a collective bargaining agreement. The matter was brought before the Fair Work Commission, which was required to determine whether the termination of the agreement was justified and in compliance with the Fair Work Act 2009. The union argued that the company's decision to terminate the agreement was not legitimate and contravened the act's provisions regarding fair and reasonable termination of agreements. The company, on the other hand, contended that the termination was justified under the act's provisions and that the union had not engaged in good faith bargaining.

The legal issues before the commission included whether the company's decision to terminate the collective bargaining agreement was in compliance with the Fair Work Act 2009 and whether the union had acted in good faith during the bargaining process. The commission had to consider the provisions of the act that govern the termination of collective agreements and assess whether the company had provided valid reasons for termination. Additionally, the commission examined the conduct of both parties during the bargaining process to determine if the union had acted in good faith.

The commission found that the company's decision to terminate the agreement was not justified under the act. The company had not provided sufficient evidence to support its reasons for termination, and the commission determined that the union had engaged in good faith bargaining. The commission held that the termination was not in accordance with the act, and as a result, the agreement remained in effect. The company's application to terminate the agreement was dismissed.

The commission's decision underscored the importance of providing adequate justification for the termination of a collective bargaining agreement and the need for both parties to engage in good faith bargaining. The commission's ruling ensured that the agreement remained in force, protecting the rights of the employees and the union. The decision serves as a reminder to employers and unions of their obligations under the act and the consequences of failing to comply with its provisions.

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