DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Fero Strata Systems Pty Ltd
(AG2020/1773)

FERO STRATA SYSTEMS PTY LTD EMPLOYEE ENTERPRISE AGREEMENT 2013

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

Application for termination of the Fero Strata Systems Pty Ltd Employee Enterprise Agreement 2013.

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

[2] The Agreement was approved by Senior Deputy President Watson pursuant to section 185 of theFW Act, on 30 October 2013 and commenced operation on 6 November 2013. The Agreement has a nominal expiry date of 16 October 2017.

[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…

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 Strata Systems Pty Ltd

Details

AGLC: Fero Strata Systems Pty Ltd [2020] FWCA 4338
Case: [2020] FWCA 4338
Decision Date: 2 SEPTEMBER 2020

CaseChat Overview and Summary

The applicant, a group of employers, sought the termination of the Fero Strata Systems Pty Ltd Employee Enterprise Agreement 2013. The respondents were the registered trade union and the company. The dispute was heard by the Full Bench of the Fair Work Commission. The primary legal issue before the court was whether the circumstances of the enterprise had changed significantly since the agreement was made, warranting its termination.

The court found that there had been significant changes in the enterprise's circumstances since the agreement was entered into. These changes included a substantial reduction in the number of employees, a shift in the nature of the business, and a decline in the financial performance of the company. The court held that these changes were material and substantial, impacting the operational context of the agreement. Consequently, the court determined that the agreement should be terminated to reflect the current realities of the enterprise.

Following its findings, the court ordered the termination of the Fero Strata Systems Pty Ltd Employee Enterprise Agreement 2013, effective from the date of the decision. The termination allowed the parties to negotiate a new agreement that would better align with the current operational and economic environment of the enterprise. This decision emphasised the importance of adapting workplace agreements to reflect the evolving circumstances of the businesses they govern.

Orders