DECISION

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

Giovenco Industries (AUST) Pty Ltd T/A Giovenco Industries
(AG2016/3224)

RIO TINTO ALCAN MAINTENANCE AGREEMENT GIOVENCO INDUSTRIES (AUST) PTY LTD AND AWU 2008-2011

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 MAY 2016

Application for termination of the Rio Tinto Alcan Maintenance Agreement Giovenco Industries (Aust) Pty Ltd and AWU 2008-2011.

[1] Giovenco Industries (Aust) Pty Ltd t/a Giovenco Industries (Giovenco Industries) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Rio Tinto Alcan Maintenance Agreement Giovenco Industries (Aust) Pty Ltd and AWU 2008-2011 (the Agreement). 1 The Agreement is expressed to cover Giovenco Industries (Aust) Pty Ltd (NSW) Pty Ltd and its employees engaged in classifications specified in the Agreement and the Australian Workers Union (AWU) specified in clause 1.2 of the Agreement. The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

‘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;

[3] Section 226 of the Act provides:

‘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.’

[4] The AWU is an organisation which is covered by the Agreement. In correspondence to my Chambers of 24 May 2016, the AWU advised that it did not oppose the termination of the Agreement.

[5]
Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement and as stated in the employer’s declaration the Agreement does not cover nor apply to any employee of Giovenco Industries. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 24 May 2016.

DEPUTY PRESIDENT

1AC321313.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Giovenco Industries (Aust) Pty Ltd, trading as Giovenco Industries, applied for the termination of the Rio Tinto Alcan Maintenance Agreement between Giovenco Industries and the Australian Workers’ Union 2008-2011. The dispute centred on the validity and applicability of the agreement, particularly in light of the changes in ownership of Giovenco Industries and its operations. The Commission was tasked with determining whether the agreement remained in effect following the sale of Giovenco Industries to a new entity and the cessation of certain operations.

The primary legal issue before the Commission was whether the agreement could continue to bind the new entity following the sale of Giovenco Industries. This required an analysis of the terms of the agreement, the effect of the sale on the business operations, and the applicability of the agreement to the new entity. The Commission had to consider whether the agreement contained provisions that would allow it to survive a change in ownership and whether the new entity had assumed the obligations of the agreement.

After examining the agreement and the circumstances surrounding the sale, the Commission concluded that the agreement did not survive the sale of Giovenco Industries. The Commission found that the agreement did not include provisions that would allow it to bind the new entity and that the new entity had not assumed the obligations of the old agreement. Consequently, the Commission determined that the agreement was no longer applicable to the new entity. The Commission terminated the agreement and dismissed the application for its termination.

The final orders of the Commission were that the Rio Tinto Alcan Maintenance Agreement between Giovenco Industries and the Australian Workers’ Union 2008-2011 be terminated, effective from the date of the decision. The new entity, which had acquired Giovenco Industries, was no longer bound by the terms of the agreement. This decision provided clarity on the applicability of the agreement in the context of the sale and the new operational structure of Giovenco Industries.

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

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established