Holcim (Australia) Pty Ltd

[2016] FWCA 1300

[2016] FWCA 1300

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
(AG2016/417)

EXCEL CONCRETE DRIVERS UNION COLLECTIVE AGREEMENT 2012

Road transport industry
COMMISSIONER SPENCER	BRISBANE, 1 MARCH 2016

Application for termination of the Excel Concrete Drivers Union Collective Agreement 2012.

[1] Holcim (Australia) Pty Ltd (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Excel Concrete Drivers Union Collective Agreement 2012 (the Agreement).

[2] The Agreement has a nominal expiry date of 1 July 2015.

[3] A conference was held in this matter on 29 February 2016. Mr Cassandra Lever, Senior HR Advisor, appeared for the Applicant. The Transport Workers Union (TWU) is a party to the Agreement and Mr Hunter Trotman, Legal Officer, appeared for the TWU.

Legislation

[4] 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.

Consideration

[5] The Commission is satisfied that an application for termination of an enterprise agreement has been made under s.225 of the Act. The Commission must terminate the Agreement after having taken into account those matters in s.226 of the Act and forming the requisite satisfaction. Each matter will be considered in turn.

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[6] The Applicant submitted that it supported the termination.

[7] The Applicant submitted that it currently engages one employee under the Agreement, and provided evidence that the one employee covered by the Agreement was in agreement with the termination.

[8] The TWU indicated that it did not oppose the termination of the Agreement.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[9] The Applicant submitted that the one employee covered by the Agreement would be covered by the Holcim (Australia) Pty Ltd S.E.Q Concrete Transport Agreement 2013-2016 upon termination of the Agreement, and provided a comparison of the terms and conditions of the Agreements. The Applicant submitted that the employee would not be disadvantaged by the termination of the Agreement.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[10] The Applicant submitted that the termination of the Agreement was not contrary to the public interest as the one employee affected would not be disadvantaged by the termination of the Agreement.

Conclusion

[11] The Commission is satisfied that an application for the termination of an enterprise agreement has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[12] The Commission is satisfied that it is not contrary to the public interest to order the termination of the Agreement.

[13] The Commission is satisfied that it is appropriate in all the circumstances to termination the Agreement, having considered the views of the Applicant, and the TWU and the views and circumstances of the employee covered by the Agreement.

[14] Having considered the material and s.226 of the Act, the Agreement must be terminated.

[15] The termination will operate from the date of this Decision.

[16] I Order accordingly.

COMMISSIONER

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