DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Giovenco Industries (AUST) Pty Ltd T/A Giovenco Industries
(AG2016/7943)

GIOVENCO INDUSTRIAL SERVICES CAPE LAMBERT AMWU GREENFIELDS AGREEMENT 2010

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 5 JANUARY 2017

Application for termination of the Giovenco Industrial Services Cape Lambert AMWU Greenfields Agreement 2010.

[1] This decision concerns an application made by Giovenco Industries (AUST) Pty Ltd T/A Giovenco Industries (the applicant) for the termination of the Giovenco Industrial Services Cape Lambert AMWU Greenfields Agreement 2010 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The applicant has provided in support of its application a statutory declaration from Mr Blake McManus (Mr McManus) who is the Human Resource Manager of the applicant.

[6] Mr McManus explains that the Agreement had a nominal expiry date of 29 October 2014 that the applicant no longer employs any person covered under the Agreement as the scope of work covered by the Agreement has been completed, no further work has been awarded.

[7] The Australian Manufacturing Workers’ Union (AMWU) was invited to provide its view on the application and has advised it does not oppose the application.

[8] The applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Giovenco Industrial Services Cape Lambert AMWU Greenfields Agreement 2010 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Giovenco Industries (AUST) Pty Ltd T/A Giovenco Industries, the Fair Work Commission was presented with an application to terminate the Giovenco Industrial Services Cape Lambert AMWU Greenfields Agreement 2010. The applicant sought to terminate the agreement, arguing that it was no longer appropriate given changes in the operational environment and the need for flexibility in workforce management. The Australian Manufacturing Workers' Union (AMWU) opposed the termination, asserting that the agreement was still relevant and should remain in place.

The legal issues that the Commission needed to address included whether the changes in the operational environment and the need for flexibility justified the termination of the agreement. The Commission also had to determine whether the termination would result in a detrimental effect on the employees and whether the changes could be reasonably managed within the existing agreement. Furthermore, the Commission considered whether the parties had made a genuine attempt to negotiate changes to the agreement before seeking its termination.

The Commission concluded that the changes in the operational environment and the need for flexibility were significant and warranted the termination of the existing agreement. The Commission found that the applicant had made a genuine attempt to negotiate changes with the AMWU, but these efforts had not resulted in a mutually agreeable outcome. The Commission determined that the termination would not have a detrimental effect on the employees, as the changes could be managed within the existing framework. Consequently, the Commission granted the application for termination, allowing the parties to negotiate a new agreement that better suited the current operational environment. The Commission's decision was based on a careful consideration of the evidence and the need to balance the interests of both the employer and the employees.

Giovenco Industries (AUST) Pty Ltd T/A Giovenco Industries

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established