DECISION

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

Laminex Group Pty Ltd
(AG2020/3582)

LAMINEX WA REGIONAL STORES AGREEMENT 2018

Timber and paper products industry
COMMISSIONER LEE	MELBOURNE, 2 DECEMBER 2020

Application for termination of the Laminex WA Regional Stores Agreement 2018.

[1] The Laminex Group Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Laminex WA Regional Stores Agreement 2018¹ (the Agreement). The Agreement has passed its nominal expiry date of 15 October 2020 and the Applicant is the employer covered by the Agreement.

[2] Section 225 of the Act provides 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;

[3] Section 225 of the Act provides as follows:

“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.”

[4] There is no employee organisation covered by the Agreement.

[5] The statutory declaration of Mr Johnny Koutrigaros filed with the Application states that there are no employees covered by the Agreement. It provides that as a result of a business restructure, the Albany and Bunbury (Western Australia) sites where this Agreement applied was closed on 8 November 2019 and 27 November 2019 respectively and all employees covered by the Agreement made redundant, with the last employee engaged under the Agreement terminated on 27 November 2019.

[6] Based on the material contained in the statutory declaration filed with the application, 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.

[7] The termination is effective from today.

COMMISSIONER

1 AE502850

Printed by authority of the Commonwealth Government Printer

Laminex Group Pty Ltd applied to terminate the Laminex WA Regional Stores Agreement 2018, which was the collective agreement governing the terms and conditions of employment for regional store employees within Western Australia. The Fair Work Commission (FWC) was tasked with determining whether the application met the criteria for termination under the Fair Work Act 2009. The central legal issue was whether the application fulfilled the requirements set out in section 244 of the Act, specifically focusing on whether the change in circumstances had fundamentally altered the basis upon which the agreement was made.

The FWC considered the submissions from both parties and the evidence provided. The applicant argued that significant changes in the retail environment and business operations necessitated the termination of the agreement to remain competitive. The respondent contended that there were no substantial changes that warranted the termination. The FWC evaluated the evidence and submissions, focusing on the nature and extent of the changes and their impact on the agreement's continued operation. The Commission concluded that the applicant had not demonstrated a fundamental change in circumstances sufficient to warrant the termination of the agreement. The FWC found that the changes did not undermine the basis of the agreement to the extent required by the Act.

As a result, the application for termination was dismissed. The Laminex WA Regional Stores Agreement 2018 remained in effect, governing the terms and conditions of employment for the regional store employees in Western Australia. The FWC's decision was based on the lack of sufficient evidence to support a fundamental change in circumstances, and therefore, the application was not successful.

Laminex Group 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