Hy-Tec Industries (Queensland) Pty Ltd

[2015] FWC 516

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based

transitional instrument

Hy-Tec Industries (Queensland) Pty Ltd

(AG2014/8432)

COMMISSIONER SIMPSON

BRISBANE, 20 JANUARY 2015

Application for termination of the Enterprise Collective Agreement - BM Webb Concrete Pty

Ltd and Concrete Batch Plant Employees of BM Webb Concrete Pty Ltd dated 28th April

2009 - Agreement No CAEN096138301.

[1] On 4 December 2014, Hy-Tec Industries (Queensland) Pty Ltd (“the Employer”)

filed an application pursuant to Sch. 3, Item 15 of the Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009 (“the TPCA Act”) to terminate the BM Webb

Concrete Pty Ltd and Concrete Batch Plant Employees of BM Webb Concrete Pty Ltd dated

28th April 2009 - Agreement No CAEN096138301. “the Agreement”).

The TPCA Act sets out that Subdivision C of Division 7 of Part 2-4 of the Fair Work Act

(“the Act”) applies.

Section 223 of the Act sets out the conditions which must be met for an agreement to be

terminated pursuant to s.222 of the Act:

“223 When FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under

section 222, FWC must approve the termination if:

(a) FWC is satisfied that each employer covered by the agreement complied with
subsection 220(2) (which deals with giving employees a reasonable opportunity to
decide etc.) in relation to the agreement; and
(b) FWC is satisfied that the termination was agreed to in accordance with
whichever of subsection 221(1) or (2) applies (those subsections deal with agreement
to the termination of different kinds of enterprise agreements by employee vote); and
(c) FWC is satisfied that there are no other reasonable grounds for believing that the
employees have not agreed to the termination; and
(d) FWC considers that it is appropriate to approve the termination taking into
account the views of the employee organisation or employee organisations (if any)
covered by the agreement.”

[2015] FWC 438

[4] Amanda Croker, Regional Manager of the Applicant provided a statutory declaration

which outlined the process taken for the employees to approve the termination of the

Agreement.

[5] The Applicant provided further material as to the information provided to the

employees prior to the vote.

[6] On the information provided, there are no other reasonable grounds for considering

that the employees have not agreed to the termination. There are no employee organisations

that are covered by the Agreement.

[7] Having considered the requirements set out in s.223 of the Act, the termination of the

Agreement is approved. In accordance with s.224 of the Act, the termination of the

Agreement will operate from the date of this Decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hy-Tec Industries (Queensland) Pty Ltd applied to the Fair Work Commission to terminate an enterprise collective agreement between BM Webb Concrete Pty Ltd and the Concrete Batch Plant Employees of BM Webb Concrete Pty Ltd, dated 28 April 2009. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The primary concern was whether the Fair Work Commission should approve the termination of the agreement, given the terms of the Fair Work Act and the process undertaken by the employer to facilitate the termination.

The key legal issue for the Commission to decide was whether the termination of the enterprise agreement was in compliance with section 223 of the Fair Work Act. This required an assessment of whether the employer had given employees a reasonable opportunity to decide on the agreement, whether the termination was agreed to in accordance with the relevant subsections, and whether there were any other reasonable grounds for believing that the employees had not agreed to the termination. Additionally, the Commission had to consider whether it was appropriate to approve the termination, taking into account the views of any employee organisations involved.

Commissioner Simpson found that Hy-Tec Industries had followed the necessary procedures for terminating the enterprise agreement. The employer provided a statutory declaration and additional material that demonstrated the steps taken to inform and involve the employees in the decision-making process. There were no other reasonable grounds to suggest that the employees had not agreed to the termination, and there were no employee organisations involved in the agreement. Therefore, the Commission approved the termination of the enterprise agreement, which would become effective from the date of the decision.

The Fair Work Commission approved the termination of the enterprise agreement between BM Webb Concrete Pty Ltd and the Concrete Batch Plant Employees of BM Webb Concrete Pty Ltd, effective from the date of the decision. This approval was based on the employer's compliance with the necessary legal requirements and the lack of any other reasonable grounds to oppose the termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established