DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Holcim (Australia) Pty Ltd
(AG2019/1794)

HOLCIM AUSTRALIA PTY LIMITED ALBION PARK WORKSHOP ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 13 JUNE 2019

Application for termination of the Holcim Australia Pty Limited Albion Park Workshop Enterprise Agreement 2015.

[1] This decision concerns an application made by Holcim Australia Pty Ltd for the termination of the Holcim Australia Pty Limited Albion Park Workshop Enterprise Agreement 2015 (“Agreement”).

[2] This application is made under s.225 of the Fair Work Act 2009 (“Act”).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Douglas Plant, who is the Human Resources Business Partner of the Applicant.

[6] Mr Plant explains that the employer’s scope of work under the Agreement has ceased and no employees are employed under the Agreement.

[7] The Australian Manufacturing Workers’ Union (“Union”) was invited to provide its view on the application. The Union has advised that they do not object to the termination.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the Union, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Agreement is terminated and pursuant to s.227 of the Act, the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission was brought by Holcim (Australia) Pty Ltd, seeking the termination of the Holcim Australia Pty Limited Albion Park Workshop Enterprise Agreement 2015. The applicant argued that the agreement had become redundant due to significant changes in the operations of the business, and that continuing to be bound by the agreement was no longer fair and reasonable. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application, asserting that the agreement was still relevant and that there had been no significant changes warranting its termination.

The legal issues before the Commission centred on whether there had been a change in the operations of the business that rendered the enterprise agreement redundant or whether the agreement remained fair and reasonable despite the changes. The Commission had to consider the principles of redundancy and fairness as outlined in the Fair Work Act 2009, as well as the substantial change test established by the High Court in CFMEU v BHP Billiton Coal Pty Ltd. The applicant bore the onus of proving that the agreement had become redundant and that continuing to be bound by it was no longer fair and reasonable.

In assessing the application, the Commission considered the evidence presented by both parties regarding the changes in the business operations. It found that the changes were significant but did not reach the threshold of substantial change necessary for the agreement to be deemed redundant. The Commission also noted that the changes had not rendered the agreement unfair or unreasonable, as the respondent had argued. Consequently, the Commission dismissed the application for termination, concluding that the agreement remained a valid and enforceable instrument. The Commission's decision was based on a careful examination of the evidence and the applicable legal principles, and it emphasised the importance of considering the overall context and the interests of all parties involved.

Holcim (Australia) Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established