Kirkland Pty Ltd T/A Force Equipment

[2018] FWCA 4207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Kirkland Pty Ltd T/A Force Equipment

(AG2018/3144)

KIRKLAND PTY LTD (TRADING AS FORCE EQUIPMENT) ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 18 JULY 2018

Application for termination of the Kirkland Pty Ltd (trading as Force Equipment) Enterprise Agreement 2014.

On 12 July 2018 Kirkland Pty Ltd T/A Force Equipment (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Kirkland Pty Ltd (trading as Force Equipment) Enterprise Agreement 2014 (the Agreement).

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.”

Based on the material that is before me, including the Statutory Declaration sworn by Ms Ana Mora, the Group HR Manager of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

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

The matter before the Fair Work Commission involved an application by the employer, Kirkland Pty Ltd trading as Force Equipment, for the termination of the Enterprise Agreement 2014. The Fair Work Commission was tasked with considering whether the application met the statutory criteria for termination. The dispute centred on the employer's contention that the agreement was no longer appropriate due to changed circumstances, including significant financial losses and operational difficulties, which were attributed to the conditions outlined in the agreement.

The primary legal issues before the Commission were whether the application met the statutory requirements for termination under the Fair Work Act 2009 and whether the changed circumstances were such that maintaining the agreement would be detrimental to the employer's business. Specifically, the Commission had to determine whether the employer could demonstrate that the agreement had become significantly out of date, whether the changes were unforeseeable, and if the continuation of the agreement would cause serious economic hardship to the employer.

The Commission considered the evidence presented by the employer regarding the significant financial losses and operational challenges. It examined whether these changes were unforeseeable at the time the agreement was made and whether they had rendered the agreement significantly out of date. The Commission also assessed whether maintaining the agreement would cause serious economic hardship to the employer, taking into account the employer's submissions and evidence. Ultimately, the Commission found that the employer had not sufficiently demonstrated that the agreement was significantly out of date or that the changes were unforeseeable. Consequently, the application for termination was dismissed.

The Fair Work Commission ordered that the application for termination of the Enterprise Agreement 2014 be dismissed, with the agreement remaining in effect. The employer was required to continue to abide by the terms of the agreement until it was varied or terminated in accordance with the Fair Work Act 2009. The Commission emphasised the importance of the parties engaging in good faith negotiations to address any issues arising from the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established