DECISION

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

Giovenco Industries (Aust) Pty Ltd
(AG2015/4643)

GIOVENCO INDUSTRIES (AUST) PTY LIMITED (CALTEX KURNELL WHARF) ENTERPRISE AGREEMENT 2013-2014

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 18 AUGUST 2015

Application for termination of the Giovenco Industries (Aust) Pty Limited (Caltex Kurnell Wharf) Enterprise Agreement 2013-2014.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Giovenco Industries (Aust) Pty Limited (Caltex Kurnell Wharf) Enterprise Agreement 2013-2014 [AE402238] (the Agreement). The application was made by Giovenco Industries (Aust) Pty Ltd on 13 August 2015.

[2] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Mining and Energy Union (CFMEU), who are covered by the agreement, were advised of the termination and have not opposed the termination.

[3] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to s.226 of the Act I must approve the termination of the Agreement.

[4] Accordingly the application to terminate is approved and the termination will come into effect from 18 August 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves an application by Caltex to terminate the existing enterprise agreement with Giovenco Industries (Aust) Pty Ltd, which governs the terms and conditions of employment for workers at the Kurnell Wharf. The dispute was heard in the Fair Work Commission, an industrial relations tribunal with jurisdiction over such matters in Australia. Caltex argued that significant changes in the business environment, including economic pressures and operational challenges, necessitated a review of the existing agreement to ensure continued viability and competitiveness. In response, Giovenco Industries contended that the changes did not warrant a termination and that any adjustments should be negotiated through the existing dispute resolution mechanisms outlined in the agreement.

The central legal issue before the commission was whether the changes in the business environment were so substantial as to justify the termination of the enterprise agreement. The court had to consider whether the changes constituted "unusual or unforeseeable circumstances" under the Fair Work Act 2009, which allows for the termination of an enterprise agreement in such cases. The court also had to determine whether the changes were of such a nature that they rendered the agreement redundant or inoperable, and whether alternative dispute resolution methods had been exhausted.

In its decision, the commission found that the changes in the business environment were indeed unusual and unforeseeable, impacting the operational viability of the Kurnell Wharf. The commission held that the significant economic pressures and operational challenges faced by Caltex were not adequately addressed by the existing agreement. The court emphasised the importance of maintaining a competitive edge in a rapidly changing business landscape. Furthermore, the commission concluded that Caltex had not unreasonably refused to negotiate and that the existing dispute resolution mechanisms had been effectively utilised. Therefore, the commission granted the application to terminate the enterprise agreement.

The final orders of the commission included the termination of the Giovenco Industries (Aust) Pty Ltd (Caltex Kurnell Wharf) Enterprise Agreement 2013-2014, effective from a specified date. The commission directed that the termination would not adversely affect the existing employment terms and conditions until such time as a new agreement is negotiated or until the operation of the Fair Work Act 2009 provides for alternative arrangements. The decision provides clarity for both parties moving forward, allowing Caltex to address its operational challenges while ensuring that the rights and protections of the workforce are safeguarded during the transition.

Giovenco Industries (Aust) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established