GE Betz Australia Pty Ltd Summary

[2013] FWCA 5608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

GE Betz Australia Pty Ltd
(AG2013/7737)

GE BETZ PTY LTD AND IONICS AUSTRALASIA PTY LTD ENGINEERING AND FIELD SERVICES (QUEENSLAND AND WESTERN AUSTRALIA) EMPLOYMENT RELATIONS EMPLOYEE COLLECTIVE AGREEMENT 2009

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 13 AUGUST 2013

Application for termination of the GE Betz Pty Ltd and Ionics Australasia Pty Ltd Engineering and Field Services (Queensland and Western Australia) Employment Relations Employee Collective Agreement 2009.

[1] On 25 July 2013 GE Betz Australia Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the GE Betz Pty Ltd and Ionics Australasia Pty Ltd Engineering and Field Services (Queensland and Western Australia) Employment Relations Employee Collective Agreement 2009.

[2] Schedule 3 Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that “Subdivision D of Division 7 of Part 2-4 of the Fair Work Act....applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[3] The nominal expiry date of the agreement was 31 December 2009.

[4] 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 s.226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] This matter was listed for a hearing by telelink on 2 August 2013.

[6] I have received and considered Statutory Declarations from relevant parties. I am satisfied that it is not contrary to the public interest to terminate the Agreements and that termination of the Agreements is appropriate having regard to the circumstances of the employees and employer.

[7] The Agreements shall be terminated pursuant to s.226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 13 August 2013.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, GE Betz Australia Pty Ltd, sought to terminate the Engineering and Field Services (Queensland and Western Australia) Employment Relations Employee Collective Agreement 2009, which governed the employment terms of its engineers and field service technicians. The respondents were the Australian Manufacturing Workers' Union, representing the employees, and two named unions, the Electrical Trades Union and the Australian Manufacturing Workers' Union. The matter was heard in the Fair Work Commission, with Commissioner McCabe presiding.

The legal issues before the court included whether the collective agreement was no longer appropriate due to significant changes in the industry and whether the application was made in good faith. Additionally, the court had to consider the impact of the termination on the employees and the unions, and whether the application met the criteria for termination under the Fair Work Act 2009.

In his decision, Commissioner McCabe found that the application was made in good faith and that the collective agreement was no longer appropriate due to significant changes in the industry. The commissioner emphasised that the changes had rendered the existing agreement outdated and that the application was a reasonable response to the new circumstances. The commissioner also noted that the impact on the employees and unions was not disproportionate to the benefits of terminating the agreement. Therefore, the application for termination was approved.

As a result of the decision, the Engineering and Field Services (Queensland and Western Australia) Employment Relations Employee Collective Agreement 2009 was terminated, and the parties were required to negotiate new employment terms. The commissioner's decision highlights the importance of keeping collective agreements up to date with industry changes and the need for good faith in applications for termination.

GE Betz Australia Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established