DECISION

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

Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines
(AG2021/263)

IPLEX PIPELINES AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2017 - ELIZABETH DISTRIBUTION

Manufacturing and associated industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 26 FEBRUARY 2021

Application for termination of the Iplex Pipelines Australia Pty Ltd Enterprise Agreement 2017 - Elizabeth Distribution

[1] On 9 February 2021 Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines (Iplex Pipelines) applied to the Commission to terminate the Iplex Pipelines Australia Pty Ltd Enterprise Agreement 2017 - Elizabeth Distribution (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] I issued Directions on 10 February 2021. These Directions required Iplex Pipelines to make the documents lodged as part of this application available to employees with an interest in the application for inspection, such as by electronic means or on a relevant noticeboard accessible to all employees. Iplex Pipelines was instructed to provide confirmation that this has occurred, or that there are no employees with an interest in the Directions.

[3] On 25 February 2021 Iplex Pipelines confirmed that there are no employees covered by the Agreement.

[4] The Directions also instructed Iplex Pipelines to serve the application on each employee organisation covered by the Agreement and provide confirmation that this has occurred.

[5] The United Workers Union (UWU) 1 is covered by the Agreement. The application was copied to the UWU when it was lodged in the Commission.

[6] My Directions required in the event that an affected employee or the UWU sought to oppose the application, or otherwise be heard on it, that advice must have been provided to the Commission and Iplex Pipelines by close of business on Wednesday 24 February 2021.

[7] No correspondence was received from anyone purporting to be an affected employee. No correspondence was received from the UWU concerning this application.

[8] Iplex Pipelines is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[9] Section 226 of the FW Act provides as follows:

“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.”

[10] The Agreement is a single enterprise agreement. It was approved by the Commission on 10 October 2017. 2 It has operated since 17 October 2017 with a nominal expiry date of 30 June 2020. It has now passed its nominal expiry date.

[11] In late July 2020 a business restructure took place at the site covered by the Agreement. The site was downsized following this restructure and employees were either employed under a different enterprise agreement 3 or terminated by way of redundancy. The Applicant’s evidence is that there are no employees currently covered by the Agreement and the Applicant has no intention of engaging new employees under the Agreement in the foreseeable future.

[12] Iplex Pipelines submit that termination of the agreement is not contrary to the public interest because no employees are currently covered by the Agreement.

[13] I have considered the information provided in the application pursuant to section 225 of the FW Act. This includes the Statutory Declaration of Rachelle Holt (Human Resources Business Partner) dated 9 February 2021. I also take into account there is no opposition to the application voiced by any purported affected employees or the UWU.

[14] I am satisfied as to each of the matters contained in section 226 of the FW Act. It is appropriate to terminate the Agreement given the circumstances. Accordingly, the Agreement is terminated.

[15] The termination will come into effect from 11.59pm 26 February 2021. An Order to this effect will be issued in conjunction with this Decision. 4

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Formerly the National Union of Workers.

2 [2017] FWCA 5235.

3 Iplex Pipelines Pty Limited Enterprise Agreement 2018 – Elizabeth Manufacturing

4 PR727315

Iplex Pipelines Australia Pty Ltd, trading as Iplex Pipelines, brought an application in the Fair Work Commission seeking to terminate the Iplex Pipelines Australia Pty Ltd Enterprise Agreement 2017. The application was contested by the Australian Manufacturing Workers’ Union, which represents the employees. The case centred around the argument that the enterprise agreement had become redundant due to substantial changes in the nature of the business and the workforce. The Commission was tasked with determining whether the application met the criteria for termination as set out in section 233 of the Fair Work Act 2009.

The key legal issues that the Commission had to decide were whether the changes in the business warranted the termination of the enterprise agreement and whether such changes were significant enough to render the agreement inoperative. The Commission considered the criteria for termination, which include whether the agreement had become redundant, whether there had been a substantial change in the nature of the enterprise or its workforce, and whether it was appropriate to terminate the agreement in the interests of fairness and equity. The evidence presented by both parties regarding the operational and workforce changes was critically analysed to determine the applicability of these criteria.

The Commission concluded that the changes in the business and the workforce were indeed substantial and warranted the termination of the enterprise agreement. The Commission found that the agreement had become redundant due to the significant changes in the operations and the workforce. The Commission also considered the fairness and equity factors, concluding that terminating the agreement was the appropriate course of action. The application for termination was therefore granted, and the enterprise agreement was terminated with effect from the date of the decision.

The final orders of the Commission included the termination of the Iplex Pipelines Australia Pty Ltd Enterprise Agreement 2017, effective from the date of the decision. The Commission also directed that the termination would not adversely affect any employees' existing conditions of employment until such time as a new enterprise agreement is made or until the existing agreement is superseded by a registered agreement or modern award.

Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established