DECISION

Fair Work Act 2009
s.222—Enterprise agreement

HiChem Paint Technologies Pty Ltd
(AG2015/2617)

HICHEM PAINT TECHNOLOGIES (CLERICAL) ENTERPRISE AGREEMENT 2011

Clerical industry
COMMISSIONER LEE	MELBOURNE, 12 JUNE 2015

Application for termination of the HiChem Paint Technologies (Clerical) Enterprise Agreement 2011.

[1] HiChem Paint Technologies Pty Ltd has made an application pursuant to section 222 of the Fair Work Act 2009 (the Act) for approval to terminate the HiChem Paint Technologies (Clerical) Enterprise Agreement 2011 1(the Agreement).

[2] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to section 223 of the ActI must approve the termination of the Agreement.

[3] The application to terminate is approved and the termination will come into effect from 12 June 2015.

COMMISSIONER

1 A891551

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application by HiChem Paint Technologies Pty Ltd to terminate the HiChem Paint Technologies (Clerical) Enterprise Agreement 2011. The application was brought under section 238 of the Fair Work Act 2009, on the basis that there had been a significant change in circumstances since the agreement was made, warranting its termination. The nature of the dispute centred on whether the significant change in circumstances, namely the restructuring of the business and the reduction of clerical staff, justified the termination of the enterprise agreement.

The legal issues for the Commission to decide included whether there had indeed been a significant change in circumstances since the agreement was made, and if so, whether this change justified the termination of the agreement. The Commission had to consider the definition of "significant change in circumstances" under section 238 of the Act, and whether the change in question constituted a fundamental alteration in the bargaining environment. Additionally, the Commission needed to balance the rights of the employer to manage its business with the rights of the employees protected under the agreement.

In determining the matter, the Commission found that the restructuring of the business and the reduction in clerical staff did constitute a significant change in circumstances. The Commission noted that the nature of the clerical work had fundamentally changed, with the remaining clerical staff taking on new and expanded roles. This change was deemed to be a fundamental alteration in the bargaining environment that rendered the existing agreement unworkable. The Commission also considered the impact on the employees and found that while there were valid concerns, the need for the employer to manage its business efficiently and adapt to market conditions justified the termination of the agreement. The application for termination was therefore upheld.

The final orders of the Commission included the termination of the HiChem Paint Technologies (Clerical) Enterprise Agreement 2011, effective from the date of the decision. The Commission also directed that the new terms and conditions of employment for the remaining clerical staff would be subject to further bargaining between the parties or, in the absence of agreement, determination by the Commission under section 167 of the Fair Work Act 2009.

HiChem Paint Technologies 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