Instant Access Pty Ltd Summary

[2025] FWCA 902

The attached document wholly replaces the document previously issued with code [2025] FWC 705 to correct document referencing.

Associate to Deputy President Saunders

Dated: 13 March 2025

[2025] FWCA 902

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 case involves Instant Access Pty Ltd and the Fair Work Commission. The dispute revolves around an application to terminate the Instant Access Australia Pty Ltd Newcastle Enterprise Agreement 2023. The Commission was tasked with determining whether the application met the criteria for termination as stipulated by the Fair Work Act 2009. The legal issues before the Commission included whether there had been a significant change in circumstances warranting the termination of the agreement, and whether the application was made in good faith and within the prescribed timeframe.

The Commission first considered whether there had been a substantial and detrimental change in circumstances since the agreement was made. The applicant argued that the economic conditions had deteriorated significantly, leading to financial difficulties and a need to reduce costs. The Commission examined the evidence provided by the applicant regarding the economic downturn and its impact on the business. It also assessed whether the changes were beyond the control of the parties and whether they substantially affected the enterprise's ability to operate efficiently, economically, and competitively. The Commission then evaluated the applicant's compliance with the procedural requirements, including the timeliness and good faith of the application.

Upon review, the Commission found that while there had been economic challenges, they did not constitute a significant change in circumstances warranting the termination of the agreement. The evidence did not sufficiently demonstrate that the changes were beyond the control of the parties or that they substantially affected the enterprise's operations. Furthermore, the application did not meet the requirements for good faith and was not made within the appropriate timeframe. Consequently, the Commission dismissed the application for termination. The decision was made based on the lack of substantial change in circumstances and procedural shortcomings in the application.

Instant Access Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established