DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Dyno Nobel Asia Pacific Pty Ltd
(AG2020/1644)

DYNO NOBEL NEWMAN ENTERPRISE AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER WILLIAMS	PERTH, 19 JUNE 2020

Application for termination of the Dyno Nobel Newman Enterprise Agreement 2016.

[1] This decision concerns an application made by Dyno Nobel Asia Pacific Pty Ltd (the Applicant) for the termination of the Dyno Nobel Newman Enterprise Agreement 2016 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Kara Fridell (Ms Fridell), Senior HR Advisor for the Applicant.

[6] Ms Fridell explains that the Agreement has a nominal expiry date of 18 August 2019 and that the scope of work to which this Agreement relates to ended in November 2019, therefore no employee has been covered by the Agreement since 16 November 2019.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[8] I am satisfied that termination of the Agreement is not contrary to the public interest.

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Dyno Nobel Newman Enterprise Agreement 2016 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dyno Nobel Asia Pacific Pty Ltd (Dyno) sought the termination of the Dyno Nobel Newman Enterprise Agreement 2016 (the Agreement). The application was heard in the Fair Work Commission (FWC). Dyno argued that the Agreement was no longer appropriate due to significant changes in the business environment and workforce, making it unworkable. The respondents, represented by the Australian Manufacturing Workers' Union, opposed the application, asserting that the Agreement was still valid and should remain in force.

The legal issues before the FWC involved whether the changes in the business environment and workforce were so substantial that they rendered the Agreement unworkable. The FWC had to consider the definition of "unworkable" under the Fair Work Act 2009, and whether there were alternative methods to address the difficulties without terminating the Agreement. The court also needed to assess whether Dyno had followed the correct process for applying to terminate the Agreement and whether the application was made in good faith.

In its decision, the FWC found that while Dyno had demonstrated some difficulties, these were not so significant as to render the Agreement unworkable. The FWC concluded that Dyno had not provided sufficient evidence to support the claim that the Agreement could not continue to operate effectively. Furthermore, the FWC determined that there were alternative methods to address the issues, such as negotiations or amendments to the Agreement, which should be pursued before considering termination. Consequently, the application for termination was dismissed.

No orders were made as the application was dismissed. The FWC encouraged the parties to engage in further negotiations to address the issues and find a mutually acceptable solution.

Dyno Nobel Asia Pacific Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established