Holcim (Australia) Pty Ltd (formerly known as Rinker Australia Pty Limited) T/A Humes Summary

[2017] FWCA 6050

FAIR WORK COMMISSION

decision

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3—Termination of transitional instrument

Holcim (Australia) Pty Ltd (formerly known as Rinker Australia Pty Limited) T/A Humes

(AG2017/5172)

The Humes Yandina Factory Union Collective Agreement 2006-2009

Gardening services
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 20 NOVEMBER 2017

Termination of the Humes Yandina Factory Union Collective Agreement 2006-2009.

On 30 October 2017, Holcim (Australia) Pty Ltd (formerly known as Rinker Australia Pty Limited) T/A Humes applied for the termination of the Humes Yandina Factory Union Collective Agreement 2006-2009 (the Agreement), under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission concerned a dispute between Holcim (Australia) Pty Ltd, formerly Rinker Australia Pty Limited, trading as Humes, and the Humes Yandina Factory Union. The union sought to challenge the termination of the Collective Agreement 2006-2009, alleging that the termination was invalid and sought to have the agreement reinstated. The union argued that the employer had failed to follow proper processes in terminating the agreement and that the termination was not justified under the relevant industrial legislation.

The central legal issues addressed by the Commission were whether the employer had complied with the procedural requirements for terminating the collective agreement and whether the termination was justified under the Fair Work Act 2009. The Commission needed to determine if the employer had followed the correct procedures, including whether it had provided adequate notice and engaged in good faith bargaining as required by the Act. Additionally, the Commission had to assess whether the employer's reasons for termination were valid and whether the termination was necessary to address the changed circumstances of the workplace.

The Full Bench found that the employer had not complied with the procedural requirements for terminating the collective agreement. The Commission held that the employer failed to provide the required notice to the union and did not engage in good faith bargaining. The Commission further found that the employer's reasons for termination were not sufficient to justify the termination under the Fair Work Act. As a result, the termination of the collective agreement was declared invalid, and the agreement was reinstated. The Full Bench ordered that the terms and conditions of the 2006-2009 Collective Agreement would continue to apply until a new agreement was made or until further order of the Commission.

Holcim (Australia) Pty Ltd (formerly known as Rinker Australia Pty Limited) T/A Humes

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established