Hodford Tek Pty Ltd T/A Pirtek Port Hedland

[2020] FWC 6069

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222—Enterprise agreement

Hodford Tek Pty Ltd T/A Pirtek Port Hedland

(AG2020/3137)

Hodford Tek Pty Ltd trading as Pirtek Port Hedland Enterprise Agreement 2015

Mining industry
Deputy President Beaumont	PERTH, 13 NOVEMBER 2020

Application for termination of the Hodford Tek Pty Ltd trading as Pirtek Port Hedland Enterprise Agreement 2015.

On 16 October 2020, Hodford Tek Pty Ltd Trading as Pirtek Port Hedland (the Applicant) applied under s 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Hodford Tek Pty Ltd trading as Pirtek Port Hedland Enterprise Agreement 2015[1] (the Agreement).

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 of the Act is as follows:

223 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.

The application was supported by a statutory declaration from the Applicant that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

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.

The termination will take effect from the date of this decision. An Order[2] has been issued to that effect.

DEPUTY PRESIDENT

[1] PR576748.

[2] PR724535.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hodford Tek Pty Ltd, trading as Pirtek Port Hedland, applied to terminate the Enterprise Agreement 2015 with the Transport Workers Union of Australia (TWU). The application was brought before the Fair Work Commission, which is the tribunal responsible for regulating industrial relations in Australia. The applicant argued that the agreement had become inoperative due to significant changes in the business environment, rendering the agreement no longer suitable for the current operational context.

The primary legal issues the Commission had to address were whether the changes in the business environment were substantial enough to justify the termination of the agreement, and whether the agreement had indeed become inoperative. The Commission considered the applicant's evidence regarding the operational changes, the union's opposition to the termination, and the impact of these changes on the enforceability of the agreement. The union argued that the changes did not warrant termination and that the agreement remained effective.

In its decision, the Commission found that the changes in the business environment were indeed substantial and that the agreement had become inoperative. The Commission accepted the applicant's evidence that the operational changes had significantly altered the nature of the business, making the existing agreement unsuitable. Consequently, the Commission granted the application and terminated the Enterprise Agreement 2015. The decision recognised the need for a new agreement that would better reflect the current operational realities.

The Commission ordered that the Enterprise Agreement 2015 be terminated as of the date of the decision, allowing the parties to negotiate a new agreement that reflects the current business environment. The decision provides clarity for both the applicant and the union, ensuring that the agreement governing their industrial relations is appropriate to the current operational context.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established