DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Laminex Group Pty Limited T/A The Laminex Group
(AG2019/4735)

LAMINEX TOOWOOMBA BRANCH AGREEMENT 2016 - 2019

Timber and paper products industry
COMMISSIONER YILMAZ	MELBOURNE, 5 March 2020

Application for termination of the Laminex Toowoomba Branch Agreement 2016 - 2019.

[1] On 9 December 2019, the Laminex Group Pty Limited T/A The Laminex Group (Applicant) made an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Laminex Toowoomba Branch Agreement 2016 – 2019 1 (Agreement). The Applicant is the employer covered by the Agreement.

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 23 November 2019. 2

[3] The Agreement is expressed to cover the employer and its employees who perform work at Toowoomba, Queensland and are engaged in the classifications listed in Appendix 1 of the Agreement. 3

Background

[4] The application was accompanied with a Form F24C – Statutory Declaration (Form F24C) made by Mr Geoffrey Dennis, the Human Resources Manager. In its Form F24C, the Applicant states that as a result of a business re-structure, the location and site where this Agreement applied has closed. Further, as the site is closed, there are no employees engaged to perform work at the site and the employer has no intention to engage employees in the future under the Agreement.

[5] On 9 January 2020, the Applicant further submitted that although the employer’s website continues to show a location at Toowoomba operating, the closure of the site became effective on 6 September 2019. The last employee who was covered by the Agreement was terminated on 6 September 2019 and the Applicant believes the termination of the Agreement is not contrary to the public interest.

Legislation

[6] 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

Consideration

[7] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.225(a) of the Act.

[8] Based on the material contained in the Applicant’s declaration, the fact the Toowoomba site has closed for some time and as a result there are no employees currently covered by the Agreement, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations that might weigh against termination of the Agreement.

[9] The termination will operate from 5 March 2020. An order giving effect to this decision will be issued separately.

COMMISSIONER

1 AE423251.

2 Ibid at clause 5.

3 Ibid at clause 4(b).

4 Fair Work Act 2009 (Cth) ss. 225, 226, 227.

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, Laminex Group Pty Limited, trading as The Laminex Group, applied for the termination of the Laminex Toowoomba Branch Agreement 2016 - 2019. The application was made under section 177 of the Fair Work Act 2009 and sought the termination of an enterprise agreement that had been registered by the Fair Work Commission. The applicant contended that the agreement had become inoperative due to the closure of the Laminex Toowoomba Branch, rendering the agreement redundant.

The central legal issues before the court were whether the agreement had indeed become inoperative due to the closure of the branch, and if so, whether termination of the agreement was the appropriate remedy. The applicant argued that the agreement, which was registered by the Fair Work Commission, should be terminated because the branch was no longer operational. Conversely, the respondent contended that the agreement should not be terminated, arguing that there were still employees within the branch's operations who were covered by the agreement.

The court considered the provisions of the Fair Work Act and the specific circumstances of the case. It found that the agreement had indeed become inoperative as the branch had closed, and there were no longer employees to whom the agreement applied. The court held that since the agreement had become inoperative and there were no employees covered by it, termination of the agreement was appropriate. The court also noted that the closure of the branch was not due to any fault of the parties but rather to external economic conditions.

In light of the court's findings, it ordered the termination of the Laminex Toowoomba Branch Agreement 2016 - 2019, effective from the date of the judgment. The court took into account the need to ensure that the agreement no longer had any legal effect, given the circumstances of the branch's closure. This decision provided clarity and finality to the matter, allowing the parties to move forward without the constraints of an inoperative agreement.

Laminex Group Pty Limited T/A The Laminex Group

DECISION

Background

Legislation

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established