Holcim (Australia) Pty Ltd
[2023] FWCA 1299
•8 MAY 2023
| [2023] FWCA 1299 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Holcim (Australia) Pty Ltd
(AG2023/1079)
HOLCIM (AUSTRALIA) PTY LTD S.E.Q CONCRETE TRANSPORT AGREEMENT 2016-2019
| Road transport industry | |
| COMMISSIONER HUNT | BRISBANE, 8 MAY 2023 |
Application for termination of the Holcim (Australia) Pty Ltd S.E.Q Concrete Transport Agreement 2016-2019
On 14 April 2023, Holcim (Australia) Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Holcim (Australia) Pty Ltd S.E.Q Concrete Transport Agreement 2016-2019 (the Agreement). The Agreement has passed its nominal expiry date of 13 October 2019.
The application was supported by a Form F24C statutory declaration of Ms Renee Adams, Senior People and Culture Business Partner of the Employer, which declared, amongst other things, that the Employer does not have any employees engaged to work under the Agreement.
On 21 April 2023, my Chambers directed the Employer to file a further witness statement regarding the circumstances of why employees are no longer covered by the Agreement given the extensive geographical coverage of the Agreement. The Employer filed a further statement by Ms Adams dated 26 April 2023, in which she declared that the Employer no longer maintains a fleet in the regions specified by the Agreement, as the work is now contracted out to third party providers.
There are no employee organisations covered by the Agreement.
Legislative provisions
Chapter 2, Part 2-4, Division 7, Subdivision D is as follows:
“225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
226 Terminating an enterprise agreement after its nominal expiry date
(1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.
227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”
Consideration
Based on the material contained in the statutory declaration filed with the application, the further statement of Ms Adams, and in consideration of s.226(1)(b), I am satisfied that the Agreement does not, and is not likely to, cover any employees.
Having regard to s.226(3)(b), the views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.
The considerations at ss.226(2) and (4) are not relevant and I am satisfied that there are no other relevant matters to take into account in deciding whether to terminate the Agreement.
Having regard to s.226(1A) of the Act, I am satisfied that it is appropriate in all the circumstances to do so. Accordingly, I must terminate the Agreement. The application to terminate the Agreement is approved.
The termination will take effect from today, 8 May 2023.
COMMISSIONER
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