Dyno Nobel Asia Pacific Pty Limited

[2018] FWCA 4413

[2018] FWCA 4413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Dyno Nobel Asia Pacific Pty Limited
(AG2018/3384)

DYNO NOBEL COLLIE ENTERPRISE AGREEMENT 2009

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 30 JULY 2018

Application for termination of the Dyno Nobel Collie Enterprise Agreement 2009.

[1] On 24 July 2018 Dyno Nobel Asia Pacific Pty Limited (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Dyno Nobel Collie Enterprise Agreement 2009 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Mr Paul Smith, Employee Relations Advisor.

[3] The statutory declaration declared that there was one employee covered by the Agreement. The Employer sought to enter into a new agreement with the Employee. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) represents the employee.

[4] The Employer, the employee and the CFMMEU spent some months discussing suitable terms to apply to the employee in the form of a common law contract. The terms were agreed on 29 June 2018, including substantial over-award conditions when compared with the Black Coal Award 2010 (Award).

[5] The Employer wrote to the employee on 6 July 2018 to inform the employee that it wished to seek a termination of the Agreement, and would seek the employee’s vote on the issue. At the time the Employer considered that an application could be made to the Fair Work Commission (Commission) if a single employee covered by the Agreement had voted to approve termination of the Agreement.

[6] On 13 July 2018 the employee voted to approve termination of the Agreement. An application pursuant to s.222 of the Act was made to the Commission. Section 223 states:

“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.”

[7] On 20 July 2018 my Associate wrote to the Employer to share my preliminary view that a s.222 application might require more than one employee to vote upon termination of an agreement for the termination to be approved pursuant to s.223 of the Act.

[8] On 24 July 2018 the Employer lodged the present s.225 application.

[9] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

[10] I have determined to deal with the s.225 application in place of the s.222 application. As a result of my decision below, it will not be necessary to determine the s.222 application and the Employer may consider withdrawing it.

Consideration

[11] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[12] In consideration of the material before me relevant to s.226(b)(i), and particularly relevant to the views of the employee, I have given appropriate weight to the approval by the employee on 13 July 2018 to terminate the Agreement. I have also had regard to the employee being represented in negotiations with the Employer on common law terms by the CFMMEU. Whilst it is true the employee understood the Employer was seeking to terminate the Agreement pursuant to s.222 and not s.225, the employee has directly voted to terminate the Agreement. I accept that course of action as constituting the views of the employee.

[13] The CFMMEU is not covered by the Agreement, however I note their representation of the employee in the negotiations entered into by him with the Employer to reach suitable terms for ongoing employment. The CFMMEU is aware of the employee’s vote to terminate the Agreement.

[14] In consideration of the material before me relevant to s.226(b)(ii), I consider that it is appropriate to terminate the Agreement. With regard to the circumstances of the employee following termination of the Agreement, the Award will have application to the workplace, together with the over-award base rate of pay and other conditions of the contract of employment.

[15] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[16] The termination will take effect from today, 30 July 2018.

COMMISSIONER

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