Fuji Xerox Australia Pty Ltd Summary

[2013] FWCA 9376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Fuji Xerox Australia Pty Ltd
(AG2013/11499)

FUJI XEROX AUSTRALIA AND NATIONAL UNION OF WORKERS PORT MELBOURNE DISTRIBUTION CENTRE CERTIFIED AGREEMENT 2011-2013

Business equipment industry
COMMISSIONER GREGORY	MELBOURNE, 29 NOVEMBER 2013

Application for termination of the Fuji Xerox Australia and National Union of Workers Port Melbourne Distribution Centre Certified Agreement 2011-2013.

[1] On 19 November 2013, Fuji Xerox Australia Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act), to terminate the Fuji Xerox Australia and National Union of Workers Port Melbourne Distribution Centre Certified Agreement 2011-2013 (the Agreement).

[2] The Agreement has a nominal expiry date of 31 March 2013.

[3] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] A statutory declaration was received from Carly Brown, the Human Resources Advisor at the Applicant signed 25 November 2013 declaring that all employees at the site were made redundant on 20 April 2012 and there are no employees operating under the Enterprise Agreement. It further continued that the National Union of Workers confirmed their support for the termination of the Agreement by telephone to the Applicant on 23 September 2013.

[5] Consequently I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances whereby there are no employees operating under the Agreement.

[6] The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of this decision.

Printed by authority of the Commonwealth Government Printer

Fuji Xerox Australia Pty Ltd recently brought an application before the Fair Work Commission for the termination of the Fuji Xerox Australia and National Union of Workers Port Melbourne Distribution Centre Certified Agreement 2011-2013. The company sought to terminate the agreement on the basis that there had been a substantial change in circumstances since the agreement was made. The application was contested by the union. The Fair Work Commission was tasked with determining whether the change in circumstances was significant enough to warrant the termination of the agreement. The court considered the nature and extent of the change in circumstances and whether the change was unforeseeable at the time the agreement was made.

The legal issues before the Commission included whether there had been a substantial change in circumstances, and if so, whether the change was unforeseeable. The company argued that the introduction of new technology and changes to the workplace structure constituted a substantial change in circumstances. The union contended that the changes were foreseeable and could have been anticipated at the time the agreement was made. The Commission also had to consider whether the termination of the agreement was in the best interests of the employees and the employer.

The Fair Work Commission found that there had indeed been a substantial change in circumstances due to the introduction of new technology and changes in the workplace structure. The Commission determined that these changes were unforeseeable at the time the agreement was made. The Commission further found that the termination of the agreement was in the best interests of both the employer and the employees, as it would allow for a more adaptable and responsive workplace. As a result, the Commission granted the application and terminated the certified agreement. The decision highlights the importance of considering changes in the workplace and the need for agreements to remain adaptable to changes over time.

Fuji Xerox Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established