[2020] FWCA 6121

The attached document replaces the document previously issued with the above code on 13 November 2020.

The attached document wholly replaces the document previously issued with the code [2020] FWC 6069 on 13 November 2020 to correct document referencing.

Steven Boughton

Associate to Deputy President Beaumont

Dated 13 November 2020

[2020] FWCA 6121

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.

[1] 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).

[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 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.

[1] 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.

[2] 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.

[3] 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 the Fair Work Commission for the termination of the Enterprise Agreement with its employees, as per the provisions of the Fair Work Act 2009. The application was made on the basis that there had been significant changes in the circumstances affecting the employees' employment, warranting the termination of the existing agreement. The Fair Work Commission was tasked with determining whether the application met the criteria for termination under the Act.

The legal issues before the Commission included whether the changes in circumstances were substantial and warranted termination of the agreement, and whether the application process complied with the requirements set out in the Fair Work Act. The Commission had to consider the evidence presented by both parties regarding the changes in the employees' employment conditions and the impact of these changes on the enforceability and effectiveness of the existing agreement.

The Commission found that the changes in circumstances were indeed substantial, affecting the practical operation and fairness of the agreement. The evidence demonstrated that the changes had significantly altered the employment landscape, making the existing agreement less practical and effective. The Commission also found that the application process was valid and in compliance with the statutory requirements. Consequently, the Commission decided to grant the application and terminate the Enterprise Agreement. This decision was made in the interest of ensuring that the employees' employment conditions are fair and effectively managed under the current circumstances.

The Fair Work Commission ordered the termination of the Hodford Tek Pty Ltd trading as Pirtek Port Hedland Enterprise Agreement 2015, effective from the date of the decision. The Commission directed that the termination would not affect the ongoing rights and obligations of the parties under the applicable national employment standards and safety net award provisions. This outcome ensured that while the specific terms of the terminated agreement were no longer in effect, the employees' basic rights and protections remained in place.

Hodford Tek Pty Ltd T/A Pirtek Port Hedland

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established