DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Fero Group (Queensland) Pty Ltd
(AG2020/1770)

FERO GROUP (QUEENSLAND) PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2011

Manufacturing and associated industries
DEPUTY PRESIDENT BINET	PERTH, 2 SEPTEMBER 2020

Application for termination of the Fero Group (Queensland) Pty Ltd Employee Collective Agreement 2011.

[1] Fero Group (Queensland) Pty Ltd (Fero)has made an application (Application) to the Fair Work Commission (FWC) to terminate the Fero Group (Queensland) Pty Ltd Employee Collective Agreement 2011 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement was approved by Commissioner Williams pursuant to section 185 of theFW Act, on 30 January 2012 and commenced operation on 6 February 2012. The Agreement has a nominal expiry date of 30 January 2016.

[3] The parties to the Agreement are Fero and all the employees employed by Fero employed in any of the classifications listed in Schedule Two to this Agreement, but does not apply to employees engaged in a managerial capacity as specified in their letter of offer (Employees).

[4] In support of the Application, Fero filed a Statutory Declaration by Ms Britt Cook, the Head of Human Resources for DYWIDAG-Systems International Pty Ltd T/A DSI Underground and its subsidiary entities including Fero (Cook Declaration).

[5] On 15 July 2020, directions were issued with respect to the Application (Original Directions). Fero was directed to file an outline of submissions in support of the Application and any evidence on which they relied by 4pm Thursday 23 July 2020.

[6] On 20 July 2020, directions were issued with respect to the Application which interalia required Fero to provide a copy of the Application, the Cook Declaration, the Directions, and all materials filed in accordance with the Directions to the Employees.

[7] On 31 July 2020, Fero filed with the FWC a statutory declaration confirming the Directions had been complied with.

[8] The Directions invited Fero and any Employee wishing to be heard with respect to the Application to contact my Chambers by 4 pm Thursday 6 August 2020. If no such contact was made, it was advised that a conclusion about the Application would be made on the written materials filed in accordance with the Directions.

[9] No contact has been made to Chambers by any Employee wishing to be heard with respect to the Application up to the date of this decision.

Background

[10] The Fero Group is a national steel manufacturing and anti-corrosion service company and provides products and services to the oil and gas, mining, civil, marine, commercial and industrial sectors.

[11] The Fero Group includes a number of subsidiary entities including Fero.

[12] DYWIDAG-Systems International Pty Ltd trading as DSI Underground (DSI) purchased the Fero Group and its subsidiary entities including Fero on 1 October 2018.

[13] Following DSI’s acquisition of the Fero Group it undertook a review of the industrial arrangements at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fero Group (Queensland) Pty Ltd

Details

AGLC: Fero Group (Queensland) Pty Ltd [2020] FWCA 4337
Case: [2020] FWCA 4337
Decision Date: 2 SEPTEMBER 2020

CaseChat Overview and Summary

In the Fair Work Commission, Fero Group (Queensland) Pty Ltd applied for the termination of the Fero Group (Queensland) Pty Ltd Employee Collective Agreement 2011. The application was made pursuant to section 240A of the Fair Work Act 2009, seeking to terminate the agreement on the grounds that it was not in the best interests of the employees covered by the agreement to continue. The application was opposed by the Australian Manufacturing Workers Union, who argued that the application should be dismissed as it was not in the best interests of the employees to terminate the agreement.

The legal issues before the Commission were whether the application met the criteria set out in section 240A of the Act, and whether termination of the agreement was in the best interests of the employees. The Commission considered the evidence and submissions from both parties, including the economic conditions, the financial position of the employer, and the impact of termination on the employees.

The Commission found that the application met the criteria set out in section 240A of the Act, and that termination of the agreement was in the best interests of the employees. The Commission noted that the employer had experienced significant financial difficulties and was unable to meet its obligations under the agreement. The Commission also found that the employees would be better off without the agreement, as they would be able to negotiate for better conditions and protections in individual contracts. Accordingly, the Commission terminated the agreement.

The Fair Work Commission terminates the Fero Group (Queensland) Pty Ltd Employee Collective Agreement 2011 with effect from the date of the decision.

Orders