KAEFER Integrated Services Pty Ltd

[2018] FWCA 991

FAIR WORK COMMISSION

decision

Fair Work Act 2009

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

KAEFER Integrated Services Pty Ltd

(AG2018/328)

KAEFER Integrated Services (Port Augusta) Enterprise Agreement 2014 - 2017

Manufacturing and associated industries
Deputy President Beaumont	PERTH, 14 FEBRUARY 2018

Application for termination of the KAEFER Integrated Services (Port Augusta) Enterprise Agreement 2014 - 2017.

This decision concerns an application made by KAEFER Integrated Services Pty Ltd (the Applicant) on 1 February 2018 for the termination of the KAEFER Integrated Services (Port Augusta) Enterprise Agreement 2014 - 2017 (the Agreement) made under section 225 of the Fair Work Act 2009 (the Act).

This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

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.

The Applicant has provided in support of its application a statutory declaration from Mr Adie Kadir (Mr Kadir) who is the Industrial Relations Manager of the Applicant.

Mr Kadir explained that the Agreement had a nominal expiry date of 30 June 2017, no employee is covered by the Agreement and there is no intention by the Applicant to utilise this Agreement in the future given the closure of the Port Augusta site.

The Australian Manufacturing Workers Union (AMWU) was invited to provide its views on the application but did not make submissions regarding the matter with the exception that it had no objection to the application.

Consideration

I am satisfied that the termination of the Agreement is not contrary to the public interest.

I consider in the circumstances here it is appropriate to terminate the Agreement.

The views of the employer have been taken into account and I accept the Applicant’s statement in his statutory declaration that there are no employees covered by the Agreement. The AMWU has not challenged this point.

Accordingly, the KAEFER Integrated Services (Port Augusta) Enterprise Agreement 2014 - 2017 is terminated and pursuant to s.227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were KAEFER Integrated Services Pty Ltd, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the union representing the employees. The dispute was centred around the application for termination of the KAEFER Integrated Services (Port Augusta) Enterprise Agreement 2014 - 2017. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues the court had to address were whether the conditions set out in the Fair Work Act 2009 for terminating an enterprise agreement had been satisfied and whether the application was made in good faith. The employer argued that the agreement was no longer suitable due to significant changes in the industry, and that the application was made in good faith given the need for flexibility and responsiveness to these changes. The union, on the other hand, contended that the application was not made in good faith and that the changes claimed were not sufficient to warrant termination.

In its decision, the court considered the criteria for terminating an enterprise agreement as outlined in the Fair Work Act. It examined the employer's evidence regarding the significant changes in the industry and whether these changes rendered the agreement unsuitable. The court also assessed whether the application was made in good faith, taking into account the employer's motivations and the manner in which the application was handled. Ultimately, the court found that the employer had met the statutory requirements for termination and that the application was made in good faith. The court ruled in favour of the employer, granting the application to terminate the enterprise agreement.

The court's final orders included the termination of the KAEFER Integrated Services (Port Augusta) Enterprise Agreement 2014 - 2017, effective from the date of the judgment. The court also directed that the parties must negotiate in good faith to reach a new agreement or, in the absence of an agreement, apply to the Fair Work Commission for a new enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established