DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Hellmuth Trust T/A H.E.M.E. Pty Ltd
(AG2019/1400)

H.E.M.E. PTY LTD ENTERPRISE AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 10 MAY 2019

Application for termination of the H.E.M.E. Pty Ltd Enterprise Agreement 2016

[1] On 29 April 2019 Hellmuth Trust T/A H.E.M.E. Pty Ltd made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the H.E.M.E. Pty Ltd Enterprise Agreement 2016 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 provides as follows:

“When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The application was supported by a Form F24A statutory declaration made by Ms Kym Hellmuth, Company Manager of H.E.M.E. Pty Ltd which declared, amongst other things, that the 29 employees covered by the Agreement were notified of the time and place of the vote and that of the 22 votes cast, 20 employees approved the termination of the Agreement.

[4] Ms Hellmuth stated in her statutory declaration that the Applicant, “Discussed at a meeting with all staff the reasons why we wanted to terminate agreement and handed out a letter to supporting discussion of potential termination…”.

[5] After this matter was allocated to me I directed the Applicant to provide a copy of the letter that had been given to the employees covered by the Agreement and to provide additional information about how the vote was conducted.

[6] On 10 May 2019 the Applicant produced to my chambers a copy of the letter that had been given to the relevant employees. I note that that letter included the following paragraph:

“Employment Contract

Please note that under this individual contract of employment all your working conditions including hours of work, pay rates, superannuation contributions and other benefits including leave entitlements will remain unchanged.”

[7] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[8] The termination will take effect today, 10 May 2019.

COMMISSIONER

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CaseChat Overview and Summary

Hellmuth Trust T/A H.E.M.E. Pty Ltd applied to the Fair Work Commission for the termination of the H.E.M.E. Pty Ltd Enterprise Agreement 2016. The employer argued that the agreement should be terminated due to changes in the business environment and the need for flexibility in the workforce. The Commission was tasked with determining whether the application met the criteria for termination and if it was in the best interests of the employees.

The primary legal issue before the Commission was whether the application satisfied the statutory requirements for termination of an enterprise agreement under the Fair Work Act 2009. Specifically, the Commission needed to assess whether the changes in the business environment were significant and whether the application was in the best interests of the employees. The employer argued that the business environment had changed significantly due to various factors, including technological advancements and market competition. The Commission also considered the impact of termination on the employees, including their job security and working conditions.

After reviewing the evidence and submissions from both parties, the Commission found that the application did not meet the criteria for termination. The Commission determined that the changes in the business environment were not significant enough to warrant termination, and that termination was not in the best interests of the employees. The Commission noted that the application did not provide sufficient evidence of a significant change in the business environment and that the employer had not demonstrated how the changes would impact the employees. Additionally, the Commission found that the employees had a strong interest in maintaining the existing agreement, which provided them with job security and other benefits.

As a result of the Commission's decision, the application for termination was dismissed. The H.E.M.E. Pty Ltd Enterprise Agreement 2016 remains in effect, and the employees continue to be covered by its terms and conditions. The employer is required to continue bargaining in good faith with the employees' representative to reach a new agreement if desired. The decision highlights the importance of providing sufficient evidence of significant changes in the business environment and considering the interests of employees when applying for the termination of an enterprise agreement.

Hellmuth Trust T/A H.E.M.E. 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