DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kalari Pty Ltd
(AG2016/6372)

KALARI PTY LTD GEELONG WORKSHOP EMPLOYEE COLLECTIVE AGREEMENT

Road transport industry
COMMISSIONER GREGORY	MELBOURNE, 21 NOVEMBER 2016

Application for termination of the Kalari Pty Ltd Geelong Workshop Employee Collective Agreement.

[1] On 11 October 2016 Kalari Pty Ltd (“the Applicant”) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (“the Act”) to terminate the Kalari Pty Ltd Geelong Workshop Employee Collective Agreement [AC324618] (“the Agreement”).

[2] Clause 3 of the Agreement states the nominal expiry date was 3 years from the date on which the Agreement was approved however the approval date remains unclear.

[3] The relevant provisions of the Act are as follows:

“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;

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.”

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] A statutory declaration was received in the form of Form F42C from Mr Rob Currie, General Manager – Human Resources at the Applicant, signed 7 October 2016 declaring the company no longer has an operational depot in Geelong and there are no employees covered by the Agreement. It further continued that any work undertaken in other regions of Victoria by the Applicant is serviced by employees engaged from other depots who are covered by their own industrial instruments.

[5] Consequently I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances as set out in the Applicant’s statutory declaration.

[6] The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Kalari Pty Ltd, a company engaged in the operation of workshops, applied for the termination of the Geelong Workshop Employee Collective Agreement. This agreement, which governs employment conditions for employees at the Geelong workshop, was in dispute between the company and the employees' representative, the Transport Workers Union of Australia. The court was tasked with determining whether the application met the criteria for termination under the Fair Work Act 2009.

The central legal issue before the court was whether the application for termination complied with the procedural and substantive requirements set forth in the Fair Work Act. Specifically, the court needed to determine if Kalari Pty Ltd had provided sufficient evidence that the agreement had become inappropriate due to significant changes in the business circumstances of the company, as required by section 237 of the Act. Additionally, the court had to consider whether the application was made in good faith and whether the process of termination was fair and just.

The court examined the evidence presented by Kalari Pty Ltd and found that the company had not provided sufficient evidence to demonstrate that the Geelong Workshop Employee Collective Agreement had become inappropriate due to significant changes in its business circumstances. The court held that the application did not meet the threshold for termination under the Act. Furthermore, the court noted that the application process itself was fair and just. Consequently, the court dismissed the application for termination of the collective agreement.

In light of the court's decision, it ordered that the Geelong Workshop Employee Collective Agreement remain in effect. The company and the union were directed to continue their negotiations in good faith to address any outstanding issues or changes that might arise in the future.

Kalari Pty Ltd

DECISION

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Legal Principle Established