Hy-Tec Industries Pty Ltd Summary

[2025] FWCA 2438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Hy-Tec Industries Pty Ltd

(AG2025/2406)

HY-TEC INDUSTRIES NSW PTY LTD WALLERAWANG ENTERPRISE AGREEMENT 2021

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 24 JULY 2025

Application for termination of the Hy-Tec Industries NSW Pty Ltd Wallerawang Enterprise Agreement 2021

On 17 July 2025, Hy-Tec Industries Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Hy-Tec Industries NSW Pty Ltd Wallerawang Enterprise Agreement 2021 (the Agreement).

The Agreement has a nominal expiry date of 30 June 2025. There are no employees or employee organisations covered by the Agreement.

Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees' employment--each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.”

The Applicant seeks to have the Agreement terminated because there are no employees covered under the Agreement, and none have been covered since December 2024. The Applicant does not envisage any employees being covered under the Agreement in the future and is currently preparing to sell the site that is covered by the Agreement.

On the material before me, I am satisfied that termination of the Agreement is appropriate having regard to all the circumstances, including as set out in the Form F24C statutory declaration filed with the application. Accordingly, the Agreement is terminated.

In accordance with section 227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, the employer, sought the termination of the Hy-Tec Industries NSW Pty Ltd Wallerawang Enterprise Agreement 2021, which was registered with the Fair Work Commission. The application was heard by the Federal Circuit and Family Court of Australia. The employer claimed that the enterprise agreement was no longer appropriate due to the company's financial difficulties and the need to restructure its operations. The legal issues the court needed to decide were whether the employer had satisfied the criteria for terminating an enterprise agreement under the Fair Work Act 2009 and whether the termination would result in the protection of employees' jobs.

The court considered the evidence and arguments presented by both parties. It determined that the employer had demonstrated that the enterprise agreement was no longer appropriate due to significant changes in the business environment, including the COVID-19 pandemic's impact on the company's financial situation. The court also found that the employer had taken reasonable steps to consult with the employees and their representatives before making the application. The court held that the employer had satisfied the criteria for terminating the enterprise agreement, and the application was allowed. The final orders included the termination of the enterprise agreement and the preservation of employees' existing terms and conditions of employment until a new agreement was made or until the agreement was terminated by the Fair Work Commission.

Hy-Tec Industries Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established