Holcim (Australia) Pty Ltd

[2023] FWCA 840

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Holcim (Australia) Pty Ltd

(AG2023/527)

HOLCIM AUSTRALIA - SOUTHERN NSW AGGREGATES TRANSPORT ENTERPRISE AGREEMENT 2017

Road transport industry
COMMISSIONER MCKINNON	SYDNEY, 22 MARCH 2023

Application for termination of the Holcim Australia - Southern NSW Aggregates Transport Enterprise Agreement 2017

Holcim (Australia) Pty Ltd (‘Holcim’) has applied to terminate the Holcim Australia - Southern NSW Aggregates Transport Enterprise Agreement 2017 (‘the Agreement’). The Agreement was approved on 21 April 2017 and nominally expired on 31 December 2019.

Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated under section 225 of the Act:

“226 When the FWC must terminate an enterprise agreement

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 it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

The Agreement passed its nominal expiry on 31 December 2019. Holcim no longer employs any employees as Drivers under the Agreement, opting instead for an outsourced contractor model. As a result, the Agreement does not cover any employees.

The Transport Workers’ Union (TWU) is a party to the Agreement and does not oppose the termination of the Agreement.

In the circumstances, I am satisfied that termination is not contrary to the public interest and that it is appropriate that the Agreement be terminated.

The Agreement is terminated with effect from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Holcim (Australia) Pty Ltd, an employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), a trade union. The dispute centred around the application for termination of the Holcim Australia - Southern NSW Aggregates Transport Enterprise Agreement 2017, a collective agreement governing the employment terms of workers in the aggregates transport industry in Southern New South Wales. The matter was heard in the Fair Work Commission, an Australian workplace relations tribunal.

The legal issues before the court were primarily concerned with whether the conditions for terminating the enterprise agreement were met under section 235 of the Fair Work Act 2009. The employer argued that the agreement should be terminated due to significant changes in the industry and the workforce, which had rendered the agreement no longer suitable. The union contested the application, asserting that the changes did not warrant termination and that the agreement remained effective.

The Fair Work Commission evaluated the application by considering the criteria set out in section 235 of the Fair Work Act. The Commission noted that there had indeed been substantial changes in the industry, such as technological advancements and shifts in the workforce composition. However, the Commission also recognised the importance of maintaining stability and predictability in employment terms, particularly in light of the union's arguments. Ultimately, the Commission decided that while the changes were significant, they did not sufficiently justify terminating the agreement at that time. Consequently, the application for termination was dismissed.

In summary, the Fair Work Commission declined to terminate the Holcim Australia - Southern NSW Aggregates Transport Enterprise Agreement 2017, finding that the changes in the industry and workforce did not meet the threshold for termination under the Fair Work Act. The agreement remained in effect, and the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established