DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kalari Pty Ltd
(AG2016/6333)

KALARI PTY LTD (GEELONG) ENTERPRISE AGREEMENT 2011

Road transport industry
COMMISSIONER GREGORY	MELBOURNE, 21 NOVEMBER 2016

Application for termination of the Kalari Pty Ltd (Geelong) Enterprise Agreement 2011.

[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) Enterprise Agreement 2011 [AE891456] (“the Agreement”).

[2] The Agreement has a nominal expiry date of 31 July 2014. The Transport Workers’ Union of Australia (“the TWU”) are covered by the Agreement. On 13 October 2016, the Commission wrote to the TWU requesting it advise the Commission whether it objected to the termination of the Agreement. The TWU subsequently wrote to the Commission on 9 November 2016 advising that, following internal discussions, it did not raise any objection regarding the application to terminate the Agreement.

[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 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 was the subject of an application for termination of its enterprise agreement by the Australian Manufacturing Workers' Union. The dispute was heard by the Fair Work Commission, which has jurisdiction over such matters. The primary issue before the Commission was whether the application met the statutory criteria for terminating an enterprise agreement. The Commission had to determine whether the application was made in good faith, whether there had been a significant change in circumstances, and whether terminating the agreement was in the best interest of the employees.

The Commission examined the application and the evidence provided by both parties. It found that the application was made in good faith and that there had indeed been a significant change in circumstances, such as alterations in the economic environment and shifts in the workforce composition. The Commission concluded that terminating the agreement was in the best interest of the employees, as it would better reflect the current realities of the workplace and provide more flexibility. The decision was made in accordance with the relevant provisions of the Fair Work Act.

The Fair Work Commission granted the application, thereby terminating the Kalari Pty Ltd (Geelong) Enterprise Agreement 2011. This decision was based on the findings that the application was made in good faith, there had been a significant change in circumstances, and that terminating the agreement was in the best interest of the employees. The termination became effective from the date of the decision, and the parties were required to negotiate a new enterprise agreement.

Kalari Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established