Holcim (Australia) Pty Ltd

[2019] FWCA 5290

[2019] FWCA 5290

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
(AG2019/2354)

HOLCIM (AUSTRALIA) PTY LTD MELBOURNE CONCRETE DRIVERS' AGREEMENT 2016 - 2019

Road transport industry
COMMISSIONER CIRKOVIC	MELBOURNE, 3 SEPTEMBER 2019

Application for termination of the Holcim (Australia) Pty Ltd Melbourne Concrete Drivers' Agreement 2016 - 2019.

[1] Holcim (Australia) Pty Ltd (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Holcim (Australia) Pty Ltd Melbourne Concrete Drivers’ Agreement 2016 – 2019 (the Agreement).

[2] The Agreement came into operation on 27 May 2016 with a nominal expiry date of 26 May 2019.

[3] The Applicant filed a statutory declaration of Ms Jessica Bailey, declared 3 July 2019 (Statutory Declaration).

[4] I issued directions on 25 July 2019. The Applicant has complied with these directions.

Legislation

[5] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passes its nominal expiry date. Section 225 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.”

[6] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

[7] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.225(a) of the Act.

Public Interest

[8] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that:

“•  No employees are covered by this Agreement or will be covered by this Agreement in the near foreseeable future.

•  Holcim Australia Pty Ltd has transitioned to a cartage supply chain model to transport our concrete within the Melbourne metropolitan area.

•  Although it’s not anticipated, if Holcim were to employ concrete drivers again within Melbourne metropolitan area, Holcim would seek to have them covered under an enterprise agreement.”

[9] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to s.226(a) of the Act, on the basis that no employees are covered by the Agreement.

Views, Circumstances and Likely Effect of Termination

[10] The Transport Workers’ Union of Australia (TWU) is an organisation which is covered by the Agreement. On 1 August 2019 the TWU emailed my chambers confirming that it does not oppose the termination application, on the basis of the undertaking provided at [8] above.

[11] The Applicant is the employer covered by the Agreement. The Applicant declares in its Statutory Declaration that the termination of the Agreement would have no effect on its circumstances.

[12] I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[13] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

[14] An Order will be issued terminating the Agreement with effect from 3 September 2019.

COMMISSIONER

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