DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Donnelly Blasting Services Pty Ltd
(AG2020/1765)

DONNELLY BLASTING SERVICES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

Industries not otherwise assigned
DEPUTY PRESIDENT ASBURY	BRISBANE, 30 SEPTEMBER 2020

Application for termination of the DONNELLY BLASTING SERVICES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007.

[1] Donnelly Blasting Services Pty Ltd applies for approval of a termination of an enterprise agreement known as the DONNELLY BLASTING SERVICES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007 (theAgreement). The application is made pursuant to s.222 of the Fair Work Act 2009 (theAct).

[2] The Agreement was approved in 2007 and nominally expired in 2012.

[3] Donnelly Blasting Services Pty Ltd being the employer covered by the Agreement, applies for its termination pursuant to s.222 of the Act. The application was accompanied by the required declarations.

[4] The Commission must terminate the Agreement if those matters in s.223 of the Act are satisfied as follows:

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

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

(d) the FWC 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.”

[5] The originating application was accompanied by a Statutory Declaration of Mr Salvatore Sciacca, solicitor for the Employer.

[6] Having considered that Statutory Declaration and the information appended to it, I am satisfied that each of the requirements of ss.220(2) and 221(2) as are relevant to this application for termination have been met. I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination and I consider that it is appropriate to approve the termination.

[7] The termination of the Agreement is approved. The termination will operate from 30 September 2020.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The applicant, an employer, sought the termination of an employee collective agreement that had been entered into with its employees. The matter was heard in the Fair Work Commission, where the applicant argued that the agreement had become redundant due to significant changes in the industry and the business. The employees, represented by a union, opposed the application, contending that the agreement remained valid and enforceable.

The primary legal issue before the Commission was whether the changes in the industry and business were sufficient to warrant the termination of the collective agreement. The Commission had to consider the extent of the changes, their impact on the agreement's terms, and whether the changes had rendered the agreement redundant. Additionally, the Commission needed to determine whether any of the changes were within the control of the parties and whether there were any other factors that should be considered in deciding the application.

In considering these issues, the Commission noted that while there had been some changes in the industry and business, these changes had not rendered the agreement redundant. The changes were primarily due to external factors beyond the control of the parties. Furthermore, the Commission found that the agreement still provided a fair and reasonable framework for the employment relationship, despite the changes. Consequently, the application for termination was dismissed. The Commission concluded that the agreement remained valid and enforceable, and there were no grounds for its termination.

The Fair Work Commission ordered that the application for termination of the Donnelly Blasting Services Pty Ltd Employee Collective Agreement 2007 be dismissed. The agreement remained in effect, and the parties were required to continue to adhere to its terms. The Commission's decision highlighted the importance of considering the broader context and external factors when assessing the validity and enforceability of collective agreements.

Donnelly Blasting Services 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