Instant Access Pty Ltd

[2025] FWC 705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Instant Access Pty Ltd

(AG2025/532)

INSTANT ACCESS AUSTRALIA PTY LTD NEWCASTLE ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 11 MARCH 2025

Application for termination of the Instant Access Australia Pty Ltd Newcastle Enterprise Agreement 2023

By an application dated 28 February 2025, Instant Access Pty Ltd (Instant Access) applied to the Fair Work Commission (Commission) to terminate the the Instant Access Australia Pty Ltd Newcastle Enterprise Agreement 2023 (Agreement) pursuant to s 222 of the Fair Work Act2009 (Cth) (Act). The nominal expiry date of the Agreement is 16 August 2026.

Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to s 222 of the Act:

223 When the 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, the FWC must approve the termination if:
(a)the 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)the 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)the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d)the 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.

The application was supported by a statutory declaration made by Mr Geoff Hutchison, Northern New South Wales Operations Manager of the Applicant, on 28 February 2025. Mr Hutchison, amongst other things, declared that of the 12 employees covered by the Agreement, 10 cast a valid vote and 10 voted to approve the termination of the Agreement.

Based on the material that is before the Commission, including the statutory declaration made by Mr Hutchison on 28 February 2025, I am satisfied that the requirements of s 223 of the Act have been met.

Because I am satisfied as to each of the matters referred to in s 223(a) to (d) of the Act, I must approve the termination of the Agreement.

In accordance with s 224 of the Act, the termination of the Agreement will come into effect from midnight on Friday, 14 March 2025. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between Instant Access Pty Ltd and their employees, represented by the Shop, Distributive and Allied Employees' Association. The company sought to terminate the Instant Access Australia Pty Ltd Newcastle Enterprise Agreement 2023, citing operational difficulties and financial strain as justification. The dispute was heard by the Fair Work Commission, which had to determine whether the company's grounds for termination were valid under the relevant industrial relations laws.

The central legal issues the commission had to address were whether the company had genuinely encountered the financial difficulties it claimed and whether these difficulties were directly attributable to the terms of the enterprise agreement. Additionally, the commission had to consider whether there were other reasonable options available to the company to mitigate these difficulties without terminating the agreement. The union argued that the company's financial issues were pre-existing and unrelated to the terms of the enterprise agreement, suggesting that termination was not warranted.

In delivering its decision, the commission closely examined the evidence provided by both parties regarding the company's financial health and operational challenges. The commission found that the company's financial difficulties were not as severe as claimed and were largely due to broader market conditions and strategic decisions rather than the terms of the enterprise agreement. Consequently, the commission ruled that the company had not met the threshold for genuine termination of the enterprise agreement under the Fair Work Act. The union's argument that the company's financial issues were pre-existing and unrelated to the agreement was also accepted by the commission.

As a result, the commission dismissed the company's application for termination of the enterprise agreement. The parties were directed to continue negotiating in good faith to address any operational and financial challenges. The commission also ordered the company to compensate the union for the costs associated with the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established