Hy-Tec Industries (Queensland) Pty Ltd Summary

[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

The matter before the Fair Work Commission involved Hy-Tec Industries (Queensland) Pty Ltd, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the employee representative. The dispute centered around an application by the employer to terminate a collective agreement-based transitional instrument. The Commission, led by Deputy President Ryan, was tasked with determining the validity and enforceability of the application.

The central legal issue was whether the application to terminate the transitional instrument was in compliance with the relevant provisions of Schedule 3, Item 15 of the Fair Work Act 2009. Specifically, the Commission needed to assess whether the employer had followed the correct procedural steps and whether the termination was justified under the circumstances. Additionally, the court had to consider the impact of the termination on the employees and the broader implications for industrial relations.

The Commission examined the procedural aspects of the application and the content of the transitional instrument. Deputy President Ryan found that the employer had not strictly adhered to the procedural requirements outlined in the Act. The employer's failure to provide adequate notice and opportunity for consultation with the union before submitting the application was deemed significant. Furthermore, the Commission held that the employer had not demonstrated a compelling justification for the termination. The decision highlighted the importance of following proper procedures and ensuring that any termination of a collective agreement-based transitional instrument is done in a manner that is fair and reasonable.

The Fair Work Commission dismissed the application to terminate the transitional instrument. The Commission's decision underscored the need for employers to comply with statutory requirements and engage in good faith negotiations with employee representatives. The ruling serves as a reminder of the importance of procedural fairness and the necessity of substantiating any claims of justification for terminating such agreements.

Hy-Tec Industries (Queensland) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established