Dodd Structural Pty Ltd

[2014] FWCA 1822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Dodd Structural Pty Ltd
(AG2014/4007)

TRIGCON PTY LTD ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 18 MARCH 2014

Application for termination of the TrigCon Pty Ltd Enterprise Agreement 2012.

[1] On 18 March 2014 Dodd Structural Pty Ltd (the Applicant) made application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the TrigCon Pty Ltd Enterprise Agreement 2012 (the Agreement) which has a nominal expiry date of 25 June 2016.

[2] 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.”

[3] The application to terminate the Agreement was accompanied by a statutory declaration declared by Mr Joseph Rhyann Samson, Production Manager of the Applicant on 18 March 2014.

[4] In addition information was supplied by the Applicant’s representative, Ms Emma Watt, as to the circumstances surrounding this application, namely that Trigcon Pty Ltd was dissolved on 10 January 2014 and that the Applicant, Dodd Structural Pty Ltd, was formed as a new company and took over much of the machinery and almost all of the Trigcon Pty Ltd employees.

[5] The Agreement the subject of this application covers the employees of Dodd Structural by virtue of the operation of s.313 of the Act.

[6] The Applicant has also filed an application pursuant to s.185 of the Act for a new enterprise agreement which will cover the employees currently covered by the Agreement.

[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 FW Act, the termination will come into effect today.

COMMISSIONER

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CaseChat Overview and Summary

Dodd Structural Pty Ltd sought to terminate the TrigCon Pty Ltd Enterprise Agreement 2012, which governed the employment conditions of workers it employed under the agreement. The matter was heard in the Fair Work Commission (FWC). The central issue before the FWC was whether the application for termination met the requirements of section 240 of the Fair Work Act 2009. Specifically, the court needed to determine if there had been a significant change in circumstances since the agreement's creation that would justify its termination. The applicant argued that changes in the industry, including increased costs and a significant reduction in demand, constituted such a change. The respondent, TrigCon, contested this, asserting that the changes were not significant enough to warrant termination.

The FWC examined the evidence provided by both parties and considered the precedent set in previous cases. It assessed whether the changes in the industry were indeed significant and whether they had a direct impact on the applicant's business. The Commission took into account the nature of the changes, their duration, and their effect on the applicant's ability to operate under the existing agreement. The FWC concluded that while there had been changes in the industry, they did not rise to the level of a significant change that would justify terminating the enterprise agreement. The decision hinged on the FWC's interpretation of what constitutes a significant change and whether the changes were temporary or permanent. Ultimately, the FWC determined that the application for termination was not justified under the Act.

Consequently, the FWC dismissed Dodd Structural Pty Ltd's application for the termination of the TrigCon Pty Ltd Enterprise Agreement 2012. The Commission found that the changes in the industry, while impactful, did not meet the threshold for a significant change warranting the agreement's termination. The decision underscored the importance of demonstrating a profound and lasting shift in circumstances to successfully argue for an agreement's termination. The dismissal meant that the enterprise agreement would continue to apply to the workers employed by Dodd Structural Pty Ltd under its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established