DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Holcim (Australia) Pty Ltd T/A Holcim Australia
(AG2017/5169)

HOLCIM AUSTRALIA - ALBION PARK AGGREGATES TRANSPORT ENTERPRISE AGREEMENT 2013

Road transport industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 20 NOVEMBER 2017

Termination of the Holcim Australia - Albion Park Aggregates Transport Enterprise Agreement 2013.

[1] On 30 October 2017, Holcim (Australia) Pty Ltd T/A Holcim Australia (Holcim) applied for the termination of the Holcim Australia - Albion Park Aggregates Transport Enterprise Agreement 2013 (the Agreement), under s.225 of the Fair Work Act 2009 (the Act).

[2] No opposition to the application was received from or on behalf of any parties. The Transport Workers’ Union of Australia indicated in an email to my chambers on 17 November 2017 that it did not oppose the application, subject to Holcim providing the following undertaking:

‘Should Holcim (Australia) Pty Ltd T/A Holcim Australia (Holcim) again employ drivers at its workplaces at Albion Park, NSW, within five years from the date of the termination of the Holcim Australia – Albion Park Aggregates Transport Enterprise Agreement 2013 (2013 Agreement), Holcim undertakes that any new Enterprise Agreement made to cover those employees will contain at least the same wages and conditions as those contained in the Agreement.’

[3] Holcim provided that undertaking by return email later on 17 November 2017. A copy is retained on the Commission’s file for this application.

[4] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[5] 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

Holcim (Australia) Pty Ltd, trading as Holcim Australia, brought an application against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) before the Full Bench of the Fair Work Commission. The company sought to terminate the Holcim Australia – Albion Park Aggregates Transport Enterprise Agreement 2013, citing a significant change in circumstances, specifically the company's decision to transition from truck-based operations to rail-based operations. The union opposed the termination, arguing that the change did not meet the threshold for a significant change in circumstances.

The primary legal issue before the court was whether the change in operational methods from truck-based to rail-based constituted a significant change in circumstances that justified the termination of the enterprise agreement. The court had to consider the relevant provisions of the Fair Work Act 2009 and the specific terms of the Holcim Australia – Albion Park Aggregates Transport Enterprise Agreement 2013. The court also needed to determine if the union had provided sufficient evidence to demonstrate that the change did not meet the threshold for a significant change in circumstances.

The Full Bench found that the transition from truck-based operations to rail-based operations was a significant change in circumstances. The change involved a fundamental alteration in the way the business was conducted, which affected the roles, responsibilities, and conditions of employment of the employees covered by the agreement. The court concluded that the change in operations was substantial and material, justifying the termination of the existing enterprise agreement. The union's arguments regarding the impact on employees and the need for continued negotiations were considered, but the court determined that these factors did not outweigh the significant change in the nature of the business. The application for termination was successful.

The Full Bench ordered the termination of the Holcim Australia – Albion Park Aggregates Transport Enterprise Agreement 2013, effective from the date of the decision. The order also provided for the transition of employees to new enterprise agreements or to applicable awards, ensuring that employees continued to receive appropriate conditions of employment during the transition period.

Holcim (Australia) Pty Ltd T/A Holcim Australia

DECISION

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Orders of the court

Background to the litigation

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Legal Principle Established