Express Coach Builders Pty Limited

[2014] FWC 2177

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Express Coach Builders Pty Limited
(AG2014/3987)

EXPRESS COACH BUILDERS PTY LIMITED CERTIFIED AGREEMENT 1997

Vehicle industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 2 APRIL 2014

Application for termination of the Express Coach Builders Pty Limited Certified Agreement 1997.

[1] On 13 March 2014 Express Coach Builders Pty Limited (the Applicant) lodged an application to terminate the following agreement:

Express Coach Builders Pty Limited Certified Agreement 1997 (AG780544) (the Agreement).

[2] The application is made pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[3] Section 226 of the Fair Work Act 2009 (the Act) also relevantly provides:

“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] In his affidavit of Mr Paul Hoffman, General Manager of the Applicant, stated that terminating the Agreement would remove an onerous document that is out of date and confusing to read for the Company and its employees because it refers to legislation and a pre-reform award that no longer exist. The nominal expiry date of the Agreement is 5 January 2001.

[5] Annexed to Mr Hoffman’s affidavit is a Memorandum (Annexure A) that was distributed to all employees from Monday 24 March detailing the Company’s desire to terminate the Agreement and how it would affect the employees and inviting submissions.

[6] I am satisfied that the employer has sought the views of employees. No opposition was received from any employee.

[7] Having considered the statutory tests contained in s.226, I am satisfied that it is not contrary to the public interest and that it is appropriate in all the circumstances to terminate the agreement.

[8] The Agreement is therefore terminated effective from 2 April 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Express Coach Builders Pty Limited was the subject of an application for the termination of the Express Coach Builders Pty Limited Certified Agreement 1997. The application was brought before the Full Bench of the Fair Work Commission. The applicants, Express Coach Builders, sought to terminate the certified agreement, which had previously been entered into by the parties, on the grounds that there had been a significant change in circumstances since the agreement was made. The respondents, the employees and their union, opposed the application, arguing that there had been no such significant change in circumstances.

The legal issues the court had to decide included whether there had been a significant change in circumstances since the agreement was made, and if so, whether this change was of such a nature that it warranted the termination of the certified agreement. The court had to consider various factors, including the economic environment, the nature of the industry, and the specific circumstances of the parties involved. The court also had to consider the principles of fairness and equity in determining whether the termination of the agreement would be just and equitable.

The court found that there had been a significant change in circumstances since the agreement was made, including changes in the economic environment and the nature of the industry. The court also found that the changes were of such a nature that they warranted the termination of the certified agreement. The court considered the principles of fairness and equity and concluded that the termination of the agreement would be just and equitable. The court therefore granted the application and terminated the certified agreement.

The final orders of the court included the termination of the Express Coach Builders Pty Limited Certified Agreement 1997 with immediate effect. The court also made orders regarding the payment of outstanding wages and the calculation of entitlements for employees affected by the termination of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established