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

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Holcim (Australia) Pty Ltd sought the termination of the Excel Concrete Drivers Union Collective Agreement 2012. The dispute centred around the agreement's application to employees who were not members of the union, a matter of significant contention given the union's status as the certified bargaining agent for concrete drivers. The company argued that the agreement's extension to non-members was unlawful, as it was not recognised as a certified agreement under the Fair Work Act 2009. The union, on the other hand, maintained that the agreement was valid and enforceable.

The central legal issue before the Commission was whether the collective agreement could be applied to non-members when it was not certified as such under the Act. This involved an interpretation of the Act, particularly sections concerning the certification of agreements and the protection of non-members. The Commission had to determine if the agreement was subject to the Act's provisions and whether it was lawful to apply the agreement to non-union members. Additionally, the Commission examined whether the union had the authority to certify the agreement for non-members and if there were any procedural flaws in the agreement's certification process.

The Commission found that the agreement was indeed subject to the Fair Work Act and that its extension to non-members was not certified as required by law. The union's failure to properly certify the agreement for non-members rendered it unenforceable against those employees. The Commission emphasised that the Act protects non-members from being subject to agreements they have not agreed to, and the union's actions contravened this principle. Consequently, the Commission ruled in favour of the company, terminating the agreement's application to non-members.

The Fair Work Commission ordered that the Excel Concrete Drivers Union Collective Agreement 2012 would no longer apply to employees who were not members of the union. This decision clarified the legal boundaries of union agreements and reinforced the rights of non-members under the Fair Work Act. The ruling underscored the necessity for proper certification processes and highlighted the importance of protecting non-union employees from being subject to collective agreements without their consent.

Holcim (Australia) Pty Ltd

DECISION

Legislation

Consideration

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established