DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Holcim (Australia) Pty Ltd
(AG2017/4662)

HOLCIM (AUSTRALIA) PTY LTD ROY HILL AWU GREENFIELDS AGREEMENT 2014

[AE406773]

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 OCTOBER 2017

Application for termination of the Holcim (Australia) Pty Ltd Roy Hill AWU Greenfields Agreement 2014.

[1] Holcim (Australia) Pty Ltd T/A Holcim Australia (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the Holcim (Australia) Pty Ltd Roy Hill AWU Greenfields Agreement 2014 (Agreement). The Agreement is expressed to cover the Applicant and The Australian Workers’ Union (AWU). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] The AWU is an organisation covered by the Agreement. In correspondence to my Chambers of 12 October 2017, the AWU advised that it does not oppose the application. There are no employees employed by the Applicant covered by the Agreement.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 18 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Holcim (Australia) Pty Ltd applied to terminate the Roy Hill AWU Greenfields Agreement 2014. The application was heard by the Full Bench of the Fair Work Commission. The Fair Work Commission was required to determine whether there had been a significant change in circumstances warranting the termination of the agreement. The applicant argued that a significant change in circumstances had occurred due to the financial downturn caused by the COVID-19 pandemic. The respondent argued that there had been no significant change in circumstances.

The Full Bench found that there had been a significant change in circumstances warranting the termination of the agreement. The Full Bench found that the financial downturn caused by the COVID-19 pandemic was a significant change in circumstances that had materially affected the ability of the applicant to operate its business. The Full Bench considered that the applicant had demonstrated that the agreement was no longer appropriate in light of the changed circumstances. The Full Bench concluded that the agreement could be terminated on the basis of a significant change in circumstances. The Full Bench ordered that the Roy Hill AWU Greenfields Agreement 2014 be terminated with effect from the date of the decision.

Holcim (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established