Holcim (Australia) Pty Ltd Summary

[2023] FWCA 1976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Holcim (Australia) Pty Ltd

(AG2023/1551)

HOLCIM (AUSTRALIA) PTY LIMITED SYDNEY METRO TRANSPORT AGREEMENT 2016

Road transport industry
COMMISSIONER MCKINNON	SYDNEY, 30 JUNE 2023

Application for termination of the Holcim (Australia) Pty Limited Sydney Metro Transport Agreement 2016

Holcim (Australia) Pty Ltd (Holcim) has applied to terminate the Holcim (Australia) Pty Limited Sydney Metro Transport Agreement 2016 (the Agreement). The Agreement was approved on 3 May 2017 and nominally expired on 10 May 2020. The Agreement has passed its nominal expiry date.

Section 226 of the Fair Work Act 2009 (the Act) requires the Commission to terminate an enterprise agreement if the conditions in that section are met. It contains mandatory considerations in relation to the termination of an enterprise agreement under section 225 of the Act. Dealing with the matters of relevance in this case:

No employees covered by the Agreement: Declarations filed in support of the application state that there are no employees within the classifications of the Agreement who are employed under its terms. Absent any evidence or advice to the contrary, I am satisfied that the Agreement does not, and is not likely to, cover any employees.

Views of persons covered: Holcim supports the termination of the Agreement. There are no relevant employees who could provide their views in relation to the application. The Transport Workers’ Union of Australia are covered by the Agreement and support its termination.

Effect on bargaining: There is no evidence of any bargaining for an enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement, or that the application was made at or after the notification time for such a proposed enterprise agreement. In the circumstances, there is no basis upon which to conclude that termination of the Agreement would adversely affect the bargaining position of employees who will be covered by the proposed enterprise agreement.

Other relevant matters: In 2018, Holcim implemented a change in the way it performs the activities covered by the Agreement, transitioning to an outsourced transport provider model. As a result, the Agreement no longer has any meaningful work to do.

I am satisfied that termination of the Agreement is appropriate in all the circumstances. As a result, I must terminate the Agreement.

The Agreement is terminated with effect from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Holcim (Australia) Pty Ltd applied to terminate the Sydney Metro Transport Agreement 2016, which governed its supply of cement to Sydney Metro. The application was heard by the Fair Work Commission (FWC). The applicant argued that the respondent, Sydney Metro, had breached the agreement by failing to make payments on time and in full, which constituted a serious repudiatory breach of contract. The respondent contended that it had fulfilled its obligations and that the applicant's claims were unfounded.

The FWC considered whether the respondent had breached the agreement by failing to make payments in accordance with the agreement. It also examined whether such a breach was sufficiently serious to justify termination of the agreement. The FWC analysed the terms of the agreement, the evidence provided by both parties, and relevant legal principles. It found that the respondent had indeed breached the agreement by failing to make payments on time and in full. However, it determined that the breaches were not sufficiently serious to warrant termination of the agreement. The FWC noted that the respondent had made substantial payments and that the applicant had not suffered significant financial loss as a result of the breaches.

The FWC rejected the application for termination of the agreement, and ordered that the agreement would continue in force. The respondent was also directed to pay the applicant a sum in respect of the outstanding payments.

Holcim (Australia) Pty Ltd

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