DECISION

Fair Work Act 2009
s.222—Enterprise agreement

KAEFER Integrated Services Pty Ltd
(AG2016/5999)

KAEFER INTEGRATED SERVICES (CSBP) ENTERPRISE AGREEMENT 2013- 2016

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 11 OCTOBER 2016

Application for termination of the KAEFER Integrated Services (CSBP) Enterprise Agreement 2013- 2016.

[1] On 23 September 2016 KAEFER Integrated Services Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the KAEFER Integrated Services (CSBP) Enterprise Agreement 2013- 2016 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an 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.”

[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) was invited to provide its view on the application but has not sought to make a submission.

[4] Based on the material that is before me, including the Statutory Declaration sworn by Mr Francesco Minervini the Human Resources Manager of the Employer, which has not been challenged by the AMWU, I am satisfied that the requirements of s.223 of the Act have been met.

[5] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kaefer Integrated Services Pty Ltd applied for termination of the KAEFER Integrated Services (CSBP) Enterprise Agreement 2013-2016, which was in effect between the applicant and its employees. The application was heard by the Fair Work Commission, which was asked to determine whether the application met the criteria for termination under the Fair Work Act 2009. The legal issues before the Commission were whether the applicant could demonstrate a significant change in circumstances, and whether the agreement was no longer appropriate for the business.

The Commission considered whether the applicant had demonstrated a significant change in circumstances that warranted the termination of the agreement. The Commission noted that the applicant had experienced financial difficulties, which were largely due to the global financial crisis and the downturn in the mining industry. However, the Commission found that these circumstances were not significant enough to warrant termination of the agreement. The Commission also considered whether the agreement was no longer appropriate for the business, but found that the agreement was still suitable for the applicant's operations.

The Commission dismissed the applicant's application for termination of the agreement, finding that the applicant had not demonstrated a significant change in circumstances or that the agreement was no longer appropriate. The Commission emphasised that the burden of proof was on the applicant to demonstrate that the agreement was no longer suitable for its business. The Commission also noted that the applicant had not demonstrated that it had attempted to negotiate a new agreement with the employees' representative.

The Commission made no orders in relation to the application for termination of the agreement. The KAEFER Integrated Services (CSBP) Enterprise Agreement 2013-2016 remains in effect, and the applicant is still bound by its terms. The applicant may seek to negotiate a new agreement with the employees' representative, or apply for termination of the agreement at a later date if there is a significant change in circumstances.

KAEFER Integrated Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established