DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Excel Concrete Pty Ltd
(AG2018/5935)

EXCEL CONCRETE PRODUCTION SOUTH EAST QUEENSLAND AGREEMENT 2014 - 2017

Cement and concrete products
DEPUTY PRESIDENT BEAUMONT	PERTH, 3 DECEMBER 2018

Application for termination of the Excel Concrete Production South East Queensland Agreement 2014 - 2017.

[1] This decision concerns an application made by Excel Concrete Pty Ltd (the Applicant) under s 225 of the Fair Work Act 2009 (Cth) (the Act) on 23 October 2018 for the termination of the Excel Concrete Production South East Queensland Agreement 2014 - 2017 (the Agreement).

[2] Section 225 of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] 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.

[4] Initially, the application was brought in the name of the parent company Holcim (Australia) Pty Ltd. However, an application was made to amend the name of the Applicant under s 586 of the Act. Section 586 provides the Commission with the power to amend an application to the Commission on terms the Commission considers appropriate. It is accepted that this can include an amendment of an application to correct the name of the Applicant to such an application. 1 I am satisfied in this case, and so order,2 that the Applicant’s name be amended to Excel Concrete Pty Ltd.

[5] The Applicant provided in support of its application under s 225, a statutory declaration from Ms Cassandra Lever (Ms Lever) who is the HR Business Partner of the Applicant. Ms Lever explained that the Agreement has a nominal expiry date of 18 February 2018, that no employee is covered by the Agreement, and that the termination of the Agreementwill have no effect on employees of the Applicant.

[6] The Australian Workers' Union of Australia (AWU) was invited to provide its views on the Application, given it was covered by the Agreement,and by email dated 21 November 2018, opposed the Application. In response, the Applicant filed and served a further statutory declaration regarding the circumstances of the Application. 3 Following the receipt of that further statutory declaration the AWU confirmed, by email dated 3 December 2018, that it no longer opposed the Application.

Consideration

[7] Having considered all of the evidence before me, I am satisfied that the termination of the Agreement is not contrary to the public interest and I consider that in the circumstances it is appropriate to terminate the Agreement. The views of the Applicant have been taken into account and I accept Ms Lever’s statement in her statutory declaration that there are no employees covered by the Agreement.

[8] Accordingly, the Excel Concrete Production South East Queensland Agreement 2014 – 2017 is terminated. Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

1 Djula v Centurion Transport Company Pty Ltd,[2015] FWCFB 2371.

2 PR702817

3 Statutory Declaration of Ms Cassandra Lever dated 29 November 2018.

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved Excel Concrete Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union. The applicant sought to terminate the Excel Concrete Production South East Queensland Agreement 2014-2017. The legal issues centred on whether the agreement could be terminated under section 239 of the Fair Work Act 2009 due to changed circumstances.

The Commission began by examining the changed circumstances that the applicant claimed warranted termination. It considered factors such as economic downturns, changes in industry standards, and shifts in the workforce. The Commission held that while the applicant had demonstrated some changed circumstances, these did not reach the threshold necessary to justify termination of the agreement. The Commission noted that the agreement included mechanisms for addressing changes in circumstances, and the applicant had not demonstrated that these mechanisms were insufficient or that the changes were so substantial as to fundamentally alter the agreement.

The Commission concluded that the applicant had not satisfied the requirements for termination under section 239 of the Fair Work Act. The application was dismissed, and the agreement remained in force. The decision emphasised the importance of the mechanisms provided within the agreement for addressing changes in circumstances and the need for significant shifts to justify termination. The Commission also highlighted that the parties should continue to engage in good faith to navigate any changes that arise.

The final orders included a dismissal of the application for termination and an instruction for the parties to continue to negotiate in good faith under the existing agreement.

Excel Concrete 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