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

In this matter, Hy-Tec Industries (Queensland) Pty Ltd applied for the termination of the Enterprise Collective Agreement dated 28 April 2009 between BM Webb Concrete Pty Ltd and the Concrete Batch Plant Employees of BM Webb Concrete Pty Ltd. The application was heard in the Fair Work Commission, where Commissioner J W S Davies presided. The applicant sought to terminate the enterprise agreement, claiming it had become redundant and was no longer relevant to the current operations of the company.

The central issue before the court was whether the enterprise agreement had indeed become redundant and whether its continued existence was no longer in the best interest of the company and its employees. The applicant argued that the agreement was outdated, no longer reflective of the company's current business practices, and had led to inefficiencies and disputes. The respondent, on the other hand, contended that the agreement was still valid and relevant, and its termination would result in detrimental consequences for the employees.

Commissioner Davies, after considering the evidence and submissions from both parties, found that the enterprise agreement had indeed become redundant. The commissioner noted significant changes in the company's operations and business environment since the agreement was made, rendering it outdated and no longer fit for purpose. Furthermore, the commissioner determined that terminating the agreement would not result in any adverse consequences for the employees, as they would continue to be protected by the applicable minimum terms and conditions under the relevant industrial instrument. Consequently, the application for termination was granted, and the enterprise agreement was terminated effective from the date of the decision.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established