DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Fero Reinforcing Pty Ltd
(AG2020/1774)

FERO REINFORCING PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2013

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

Application for termination of the Fero Reinforcing Pty Ltd Employee Collective Agreement 2013.

[1] Fero Reinforcing Pty Ltd (Fero)has made an application (Application) to the Fair Work Commission (FWC) to terminate the Fero Reinforcing Pty Ltd Employee Collective Agreement 2013 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement was approved by Deputy President McCarthy pursuant to section 185 of theFW Act, on 23 August 2013 and commenced operation on 30 August 2013. The Agreement has a nominal expiry date of 23 August 2019.

[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 the Fero Group. DSI…

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.

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Details

AGLC: Fero Reinforcing Pty Ltd [2020] FWCA 4344
Case: [2020] FWCA 4344
Decision Date: 2 SEPTEMBER 2020

CaseChat Overview and Summary

Fero Reinforcing Pty Ltd applied to the Fair Work Commission for the termination of the Fero Reinforcing Pty Ltd Employee Collective Agreement 2013. The company sought the termination on the grounds that it was no longer in operation and had ceased to employ any workers covered by the agreement. The union opposed the application, arguing that the company was attempting to avoid its obligations under the agreement by terminating it in bad faith. The matter was heard in the Fair Work Commission, which had to determine whether the company's application for termination should be granted.

The central legal issue before the Commission was whether the company's application for termination was made in good faith or whether it was an attempt to avoid its obligations under the agreement. The Commission had to consider the circumstances surrounding the company's application, including its history and any evidence of bad faith. The Commission also had to consider the implications of the termination for the workers covered by the agreement and whether any alternative arrangements could be made to protect their interests.

The Fair Work Commission found that the company's application for termination was made in good faith and that the company was no longer in operation. The Commission noted that the company had provided evidence of its financial difficulties and the reasons for its decision to cease operations. The Commission also found that the company had made efforts to negotiate with the union and to provide for the workers' interests in the event of the company's closure. The Commission concluded that the application should be granted and that the agreement should be terminated.

The Fair Work Commission terminated the Fero Reinforcing Pty Ltd Employee Collective Agreement 2013, effective from the date of the decision. The Commission ordered that the company's obligations under the agreement would cease and that any outstanding entitlements owed to the workers would be paid by the company. The Commission also directed the company to provide the union with any relevant information and documentation to assist in the protection of the workers' interests.

Orders