Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines

[2021] FWCA 2053

[2021] FWCA 2053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines
(AG2021/4624)

IPLEX PIPELINES AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2018 - OSBORNE PARK DISTRIBUTION

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DEPUTY PRESIDENT BINET	PERTH, 28 APRIL 2021

Application for termination of the Iplex Pipelines Australia Pty Ltd Enterprise Agreement 2018 - Osborne Park Distribution.

[1] Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines (Iplex) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Iplex Pipelines Australia Pty Ltd Enterprise Agreement 2018 - Osborne Park Distribution (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement was approved by Deputy President Masson pursuant to section 185 of the FW Act on 9 April 2019 and commenced operation on 16 April 2021. The Agreement had a nominal expiry date of 2 September 2020.

[3] The parties to the Agreement are Iplex, its employees who are employed within the Distribution Division of Iplex located at 25 King Edward Road Osborne Park WA 6017 as set out at clause 2 of the Agreement, (Employees), and the United Workers’ Union (UWU), formerly United Voice.

[4] In support of the Application, Iplex filed a statutory declaration of Ms Rachelle Holt, Human Resource Business Partner of Iplex (Holt Declaration).

[5] On 14 April 2021, directions were issued with respect to the Application (Directions). The UWU was directed to file an outline of submissions in relation to the application. On 14 April 2021 the UWU wrote to my Chambers and advised that it did not wish to be heard in relation to the matter and were content for the application to be determined on the basis of the material before the Commission.

[6] On 14 April 2021, Iplex wrote to my Chambers and advised that it did not wish to be heard with respect to the application and was content for the matter to be determined without the need to file any further materials.

Legislation

[7] Subdivision D of Division 7 of Part 2 - 4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.

[8] Section 225 of the FW Act provides that:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[9] As the Agreement has passed its nominal expiry date and Iplex is an employer covered by the Agreement, I find that Iplex has standing to make the Application pursuant to section 225(a) of the FW Act.

[10] Section 226 of the FW Act states:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

Is it contrary to the public interest to terminate the Agreement?

[11] Section 226(a) requires the FWC to be satisfied that it is not contrary to the public interest to terminate the Agreement.

[12] This requires the FWC to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise on the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards. 1

[13] There is no positive onus on an applicant to persuade the FWC that there are positive benefits to the public interest arising from the termination. In Geelong Wool Combing Ltd (AIRC) 5 September 2003, Commissioner Wheelan said:

“… the Commission must be persuaded that termination is contrary to the public interest [and] in the absence of any effect of termination which is contrary to the public interest it is not necessary to persuade the Commission that there are positive benefits to the public interest arising from the termination.”

[14] The public interest is distinct in nature from the interests of those covered by an agreement. The views of those covered by an agreement may be relevant to the exercise of the discretion if they shed light on the effect of the termination on public interest but those views should not be given any independent weight. 2

[15] The object of the FW Act is set out in section 3 of the FW Act, as follows:

“3. Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

…

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders;

…

(f) achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;

…”

[16] The specific objects in section 171 of the FW Act inform how the general object in section 3 of the FW Act is to be satisfied in the context of matters dealt with in Part 2 - 4 of the FW Act:

“171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

i. making bargaining orders; and

ii. dealing with disputes where the bargaining representatives request assistance; and

iii. ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”

[17] The ascertainment of what is not in the public interest does not involve the mere identification of a consequence of the termination of the agreement that is arguably contrary to the public interest. The ascertainment of the public interest may involve balancing countervailing public interests. 3

[18] Iplex submit that there are no matters contrary to the public interest if the Agreement is terminated. In her declaration, Ms Holt explained that the site at which the Agreement applied has been closed and employees who were covered by the Agreement have been made redundant or offered redeployment elsewhere.
[19]

[20] According to Ms Holt there is no intention by the company to engage employees under the Agreement in the foreseeable future.

UWU concur with Inplex that it is not contrary to the public interest to terminate the Agreement.

[21] Based on the submissions of Iplex and UWU, and the evidence before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

What are the views of the Employees covered by the Agreement?

[22] According to the Holt Declaration, no employees are covered by the Agreement.

What are the views of the Employee Organisation covered by the Agreement?

[23] The UWU advised in its correspondence to Chambers on 14 April 2021 that it is supportive of Iplex’s application to terminate the Agreementas that there are no employees covered by the Agreement and as Iplex has no intention of restarting manufacturing in Western Australia.

What are the views of the Employer covered by the Agreement?

[24] Iplex has made the application and therefore, are in favour of the termination of the Agreement.

What are the circumstances of the Employees covered by the Agreement?

[25] According to Ms Holt all Employees who were covered by the Agreement have been paid all their employment entitlements in accordance with the Agreement and no longer work at the site.

What are the circumstances of the Employee Organisation covered by the Agreement?

[26] The UWU said that it has no members covered by the Agreement and did not seek to be heard further in relation to the Application.

What are the circumstances of the Employer covered by the Agreement?

[27] Iplex has closed the relevant site and had no intention to re-open it.

Is it appropriate to terminate the Agreement, taking into account all the circumstances?

[28] In assessing the views and circumstances of the parties it is important to remember that:

“Taking into account the views and circumstances of the parties involves far more than an expression of their views in support or opposition to termination. It should involve a reason for their views and the validity of their concerns.” 4

[29] I am satisfied that the views of Iplex and the UWU that the agreement should be

terminated are valid. The Agreement has past its nominal expiry date. The site at which the

Agreement applied has closed and all employees made redundant. Iplex does not propose to engage employees covered by the Agreement in the future.

Conclusion

[30] For the reasons enunciated above, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[31] Taking into account all the circumstances, including the views and circumstances of Iplex and the UWU, I am satisfied that it is appropriate to terminate the Agreement.

[32] Accordingly, the Agreementis terminated. The termination is to take effect on, and from, the date of this Decision. An Order to this effect will be issued in conjunction with this Decision. 5

DEPUTY PRESIDENT

 1   Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40 – 41.

 2   Ibid.

 3   Kellogg Brown & Root Pty Ltd & Ors and Esso Australia Ltd (2005) 139 IR 34 referred to the decision of Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393.

 4   Energy Resources Australia Ltd v Liquor, Hospitality and Miscellaneous Union[2010] FWA 2434, [16].

 5   PR727740.

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