Dyno Nobel Asia Pacific Ltd

[2022] FWCA 4501

[2022] FWCA 4501

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Dyno Nobel Asia Pacific Ltd

(AG2022/5029)

Dyno Nobel North Queensland Regional Enterprise Agreement 2013

Manufacturing and associated industries
Commissioner Spencer	BRISBANE, 19 DECEMBER 2022

Application for termination of the Dyno Nobel North Queensland Regional Enterprise Agreement 2013

1. An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Dyno Nobel Asia Pacific Ltd (the Applicant) to terminate the Dyno Nobel North Queensland Regional Enterprise Agreement 2013 (the Agreement).

1. The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 3 July 2017.

1. Sections 225 and 226 of the Act provide:

“225      Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)       one or more of the employers covered by the agreement;

(b)       an employee covered by the agreement;

(c)       an employee organisation covered by the agreement.

226     When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

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

(b)       the 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.”

1. Ms Kara Fridell, Human Resources Business Partner for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement.

1. Ms Fridell stated that the Agreement expired in July 2017, and due to organisational changes that took place on 31 December 2020, there are currently no employees employed under the Agreement. Ms Fridell further submitted that as the Agreement no longer applies to any work performed by employees of the employer, terminating it would have no impact upon employees.

1. Ms Fridell additionally submitted that the termination of the Agreement would have no impact upon the business of the employer, other than reducing the risk of confusion as to Agreement coverage, and that it would not be contrary to the public interest to terminate the Agreement.

1. The views of the Australian Workers’ Union (AWU) being a party to the Agreement, were sought in relation to the application to terminate the Agreement. Mr Gavin Lawrence of the AWU informed the Commission via telephone that he supported the termination of the Agreement.

1. Taking into account the information provided in response to the matters in s.226 of the Act, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 19 December 2022.

1. I Order accordingly.

COMMISSIONER

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