Hyne & Son Pty Limited T/A Hyne Timber

[2023] FWCA 2183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Hyne & Son Pty Limited T/A Hyne Timber

(AG2023/2206)

HYNE TIMBER TUMBARUMBA ENTERPRISE AGREEMENT

Timber and paper products industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 14 JULY 2023

Application for termination of the Hyne Timber Tumbarumba Enterprise Agreement

On 22 June 2023, Hyne & Son Pty Limited applied to terminate the Hyne Timber Tumbarumba Enterprise Agreement (the Agreement) pursuant to section 222 of the Fair Work Act 2009 (Cth) (the Act).

The Agreement has a nominal expiry date of 13 October 2023.

Background

The Applicant is the sole employer covered by the Agreement. The Agreement covers employees employed at the Tumbarumba site in the roles identified in the wages table in the Agreement.

The application was supported by a declaration of Ms Alison Newman, General Manager – People and Culture, dated 21 June 2023.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are covered by the Agreement.

The Commission sought the views of the CFMMEU and the CEPU. The CFMMEU have advised that they do not object to the termination of the Agreement. The CEPU expressed no view about the application.

The Applicant has simultaneously filed an application to approve a new enterprise agreement which relates to the same cohort of employees (proposed 2023 Agreement). The Applicant seeks to terminate the Agreement so that the proposed 2023 Agreement can be approved by the Commission.

Consideration

Ms Newman declares that employees were provided with a Document Pack on 29 and 30 May 2023, outlining the basis for the application and voting information by letter, a copy of the proposed 2023 Agreement and a comparison document between the Agreement and the proposed 2023 Agreement. Copies of these documents were lodged with the application.

I am satisfied that the Applicant, before requesting the employees approve the termination of the Agreement, took all reasonable steps to notify the employees of the voting method and time and place at which the vote would occur. Of the 161 employees covered by the Agreement, 143 cast a valid vote and 126 employees voted to approve the termination of the Agreement.

I am also satisfied that the Applicant gave the employees a reasonable opportunity to decide whether they wanted to approve the proposed termination. Employees were provided with comparison documents between the Agreement and the proposed 2023 Agreement.

I am satisfied that the application was made within 14 days after the termination was agreed to.

I am satisfied that the termination was agreed to by the relevant employees, and I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

I am satisfied that the requirements of s.223 of the Act have been met, and in all the circumstances, I consider that it is appropriate to terminate the Agreement.

The Agreement is terminated effective midnight 20 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Hyne & Son Pty Limited trading as Hyne Timber, applied to terminate the Hyne Timber Tumbarumba Enterprise Agreement. The agreement, which was made between Hyne Timber and the Retail and Fast Food Workers Union of NSW, provided for the terms and conditions of employment of Hyne Timber's employees at the Tumbarumba site. The dispute arose as Hyne Timber sought to terminate the enterprise agreement due to significant changes in its business operations and a need to adapt its workforce structure. The case was heard by the Fair Work Commission.

The primary legal issues before the Commission were whether the changes in Hyne Timber's business operations constituted a significant change in circumstances as per section 236 of the Fair Work Act 2009, and whether terminating the enterprise agreement was necessary and reasonable. The Commission had to consider whether the proposed changes were genuine and whether there was a fair process followed in negotiating the termination. Additionally, the Commission needed to ensure that the termination would not cause significant detriment to the employees.

The Fair Work Commission found that Hyne Timber had demonstrated a significant change in its business operations, leading to the need for a restructuring of its workforce. The Commission was satisfied that the changes were genuine and that Hyne Timber had followed a fair process in negotiating the termination of the agreement. It was determined that the proposed changes were necessary and reasonable, and that the termination of the enterprise agreement would not cause significant detriment to the employees. Consequently, the Commission granted the application to terminate the Hyne Timber Tumbarumba Enterprise Agreement.

The final order of the Commission was that the Hyne Timber Tumbarumba Enterprise Agreement, made between Hyne Timber and the Retail and Fast Food Workers Union of NSW, be terminated with effect from the date specified in the application. The termination of the agreement would allow Hyne Timber to implement the necessary changes in its business operations and workforce structure. The Commission emphasised the importance of fair and transparent processes in future negotiations and agreements between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established