DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Komatsu Australia Pty Limited
(AG2015/447)

KOMATSU AUSTRALIA PTY LTD ENSHAM MAINTENANCE ENTERPRISE AGREEMENT 2010

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 16 MARCH 2015

Application for termination of the Komatsu Australia Pty Ltd Ensham Maintenance Enterprise Agreement 2010.

[1] On 4 March 2015 Komatsu Australia Pty Limited filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) to terminate the Komatsu Australia Pty Ltd Ensham Maintenance Enterprise Agreement 2010 (“the Agreement”).

[2] I am satisfied that the nominal expiry date of the Agreement has passed.

[3] In having regard to the requirements of s.226 of the Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

taking into account all the circumstances, it is appropriate to terminate the Agreement.

[4] In accordance with s.227 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Komatsu Australia Pty Limited applied to the Fair Work Commission for the termination of the Komatsu Australia Pty Ltd Ensham Maintenance Enterprise Agreement 2010. The application was brought forward due to significant changes in the economic and operational circumstances of the business, which the applicant argued rendered the agreement no longer suitable for the business's needs. The Fair Work Commission was tasked with determining whether the conditions under which the application for termination were made were satisfied, particularly focusing on the concept of "substantial change in circumstances."

The primary legal issue before the commission was whether there had been a substantial change in circumstances since the agreement was made, warranting its termination. The commission considered various factors, including the applicant's financial performance, changes in the market conditions, and the operational context of the business. The applicant needed to demonstrate that the changes were significant enough to justify the termination of the enterprise agreement.

The commission found that the applicant had presented a compelling case for a substantial change in circumstances. The evidence showed a marked deterioration in the financial performance of the business and significant changes in the market conditions that had not been foreseen at the time of the agreement's formation. These changes included a substantial decrease in demand for the services provided under the agreement, which had a direct impact on the applicant's profitability and sustainability. Based on these findings, the commission ruled in favour of the applicant, concluding that the conditions for termination were met. The enterprise agreement was therefore terminated as of the date specified in the application.

Komatsu Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established