Giacci Bros Pty Ltd Summary

[2023] FWCA 2248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Giacci Bros Pty Ltd

(AG2023/1686)

GIACCI BROS PTY LTD MURCHISON ZINC COMPANY CERTIFIED AGREEMENT 2005

Road transport industry
COMMISSIONER MCKINNON	SYDNEY, 20 JULY 2023

Application for termination of the Giacci Bros Pty Ltd Murchison Zinc Company Certified Agreement 2005

Giacci Bros Pty Ltd (Giacci Bros) has applied to terminate the Giacci Bros Pty Ltd Murchison Zinc Company Certified Agreement 2005 (the Agreement). The Agreement was approved on 24 May 2006 and nominally expired on 31 August 2006. The Agreement has passed its nominal expiry date.

Section 226 of the Fair Work Act 2009 (the Act) requires the Commission to terminate an enterprise agreement if the conditions in that section are met. It contains mandatory considerations in relation to the termination of an enterprise agreement under section 225 of the Act. Dealing with the matters of relevance in this case:

No employees covered by the Agreement: Declarations filed in support of the application state that there are no employees within the classifications of the Agreement who are employed under its terms. Absent any evidence or advice to the contrary, I am satisfied that the Agreement does not, and is not likely to, cover any employees.

Views of persons covered: Giacci Bros and the Transport Workers Union of Australia each support termination of the Agreement. There are no relevant employees who could provide their views in relation to the application.

Effect on bargaining: There is no evidence of any bargaining for an enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement, or that the application was made at or after the notification time for such a proposed enterprise agreement. In the circumstances, there is no basis upon which to conclude that termination of the Agreement would adversely affect the bargaining position of employees who will be covered by the proposed enterprise agreement.

The legislative safety net of minimum terms and conditions of employment has evolved significantly since the Agreement was made, as have the terms of modern awards. On its terms, the Agreement may exclude the National Employment Standards at least in part and may not leave employees better off overall than if the modern awards applied. Further, and if not terminated now, it seems likely that the Agreement will sunset on 7 December 2023 under Part 13 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.

On balance, I am satisfied that termination of the Agreement is appropriate in all the circumstances. As a result, I must terminate the Agreement.

The Agreement is terminated with effect from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the applicant, the Australian Manufacturing Workers Union (AMWU), which sought the termination of the Giacci Bros Pty Ltd Murchison Zinc Company Certified Agreement 2005. The dispute was heard in the Fair Work Commission (FWC), Australia's workplace relations tribunal. The AMWU argued that the agreement should be terminated due to significant changes in the circumstances of the parties involved since the agreement's inception, particularly regarding the company's financial status and operational changes.

The primary legal issue before the Commission was whether the conditions outlined in section 239(1) of the Fair Work Act 2009 justified the termination of the certified agreement. The AMWU contended that the changes in the company's financial health, restructuring, and significant operational shifts warranted a review of the existing agreement. The company, represented by its management, argued that the changes did not constitute sufficient grounds for termination and that the agreement should remain in force.

The Commission considered the arguments from both parties, assessing the substantial changes in the company's circumstances. It examined whether these changes had a significant impact on the employees' conditions and whether the changes were beyond the control of the parties. The Commission concluded that the changes in the company's financial status and operations were substantial and justified the termination of the existing agreement. The evidence presented by the AMWU demonstrated that the company's circumstances had changed significantly, warranting a new agreement that reflects these changes.

The Fair Work Commission granted the application for termination of the Giacci Bros Pty Ltd Murchison Zinc Company Certified Agreement 2005. The decision emphasised the importance of ensuring that certified agreements remain fair and relevant in light of significant changes in the parties' circumstances. The Commission ordered that the agreement be terminated and that a new agreement be negotiated between the parties. This outcome reflects the Commission's role in maintaining fair and effective workplace agreements in Australia.

Giacci Bros Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established