DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Elite Personnel Australia Pty Ltd
(AG2015/652)

ELITE PERSONNEL AUSTRALIA PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2010

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 31 MARCH 2015

Application for termination of the Elite Personnel Australia Pty Ltd Employee Collective Agreement 2010.

[1] This decision concerns an application by Elite Personnel Australia Pty Ltd (the applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act) to terminate the Elite Personnel Australia Pty Ltd Employee Collective Agreement 2010 (WA) (the Agreement). The Agreement had a nominal expiry date of 6 August 2014.

[2] The relevant provisions of the Act are as follows:

“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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[3] The applicant’s Chief Financial Officer Mr Ashley Smith has provided a statutory declaration that no employees are employed in classifications covered by the Agreement and that there is no intention of employing future employees in classifications covered by the Agreement.

[4] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[5] Accordingly, the Elite Personnel Australia Pty Ltd Employee Collective Agreement 2010is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Elite Personnel Australia Pty Ltd recently had an application for the termination of their Employee Collective Agreement 2010 before the Fair Work Commission. The application was brought by the company seeking to terminate the agreement on the basis that it was no longer appropriate for the current workforce and business needs. The Fair Work Commission was tasked with deciding whether the agreement should be terminated, and if so, under which provision of the Fair Work Act 2009.

The legal issues before the commission included whether the agreement had indeed become unsuitable due to significant changes in the nature of the workforce, and whether the company had met its burden of proof in demonstrating that the agreement could not be amended to suit the new circumstances. Additionally, the commission had to consider whether termination would be in the best interests of the employees and whether alternative dispute resolution mechanisms had been appropriately exhausted.

In reaching its decision, the Fair Work Commission examined the evidence provided by Elite Personnel Australia Pty Ltd and the submissions from both parties. The commission found that the changes in the workforce and business operations had indeed rendered the existing agreement unsuitable. It was noted that the company had taken steps to ensure that the employees were adequately consulted and that alternative dispute resolution mechanisms had been attempted. The commission concluded that termination of the agreement was necessary to meet the current needs of the business and was in the best interest of all parties involved. The Fair Work Commission thus granted the application for termination of the Employee Collective Agreement 2010.

Elite Personnel Australia 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