Hy-Tec Industries (Queensland) Pty Ltd (AG2014/8433) Building, metal and civil construction industries

[2015] FWC 517

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

(AG2014/8433)

Building, metal and civil construction industries

COMMISSIONER SIMPSON

BRISBANE, 20 JANUARY 2015

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

Ltd and Quarry Employees of BM Webb Holdings Pty Ltd.

[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 Holdings

Pty Ltd and Quarry Employees of BM Webb Holdings Pty Ltd. (“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

[2015] FWC 517

(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.”

Mark Anthony Collins, Quarry Manager of the Applicant provided a statutory declaration

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

[4] The Applicant provided further material as to the information provided to the employees prior to

the vote.

[5] 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.

[6] 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 terminate an enterprise agreement with BM Webb Holdings Pty Ltd and its quarry employees. The application was filed under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, specifically Sch. 3, Item 15, which refers to the Fair Work Act 2009. The tribunal was required to determine whether the application met the conditions for terminating the agreement as outlined in s.223 of the Fair Work Act.

The tribunal needed to consider if the employer had complied with the requirements to give employees a reasonable opportunity to decide on the agreement, whether the termination was agreed upon in accordance with the relevant subsections of s.221, and if there were any other reasonable grounds to believe that the employees did not agree to the termination. Additionally, the tribunal had to consider the views of any employee organisations covered by the agreement. The employer submitted a statutory declaration and additional material to demonstrate the process followed to obtain employee approval for the termination.

Upon reviewing the provided information, the tribunal found that there were no other reasonable grounds for believing that the employees had not agreed to the termination. As there were no employee organisations covered by the agreement, the tribunal concluded that the termination met the statutory requirements. The tribunal approved the termination of the enterprise agreement, effective from the date of the decision, in accordance with s.224 of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established