Liebherr-Australia Pty Ltd

[2015] FWCA 8880

[2015] FWCA 8880

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Liebherr-Australia Pty Ltd
(AG2015/7517)

LIEBHERR-AUSTRALIA MOBILE CRANE DIVISION EMPLOYEE COLLECTIVE AGREEMENT

Vehicle industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 22 DECEMBER 2015

Application for termination of the Liebherr-Australia Mobile Crane Division Employee Collective Agreement.

[1] Liebherr-Australia Pty Ltd (Liebherr-Australia) have lodged an application pursuant to Item 15, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the Liebherr-Australia Mobile Crane Division Employee Collective Agreement Liebherr-Australia Mobile Crane Division Employee Collective Agreement (the Agreement). The nominal expiry date of the Agreement was 11 January 2012.

[2] I must approve the termination if I am satisfied that each of the requirements of Section 226 of the Fair Work Act 2009 (the Act) are met. Section 226 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.”

[3] A statutory declaration of Mr James Smith, Senior HR Advisor of Liebherr-Australia Pty Ltd was provided with the application. Mr Smith’s declaration states that each employee covered by the Agreement was provided with notice that the Company intended holding a ballot on whether or not to terminate the Agreement. The ballot was to be conducted on Tuesday 1 December by way of a secret ballot.

[4] The statutory declaration further advised that the ballot was conducted on 1 December 2015 and the majority of employees participated with a result of 24-13 in favour of terminating the Agreement. Three employees abstained from voting.

[5] On 4 December 2015 I sent Directions to the employer requesting the application and Directions be made available to all employees covered by the agreement by Thursday 10 December 2015. I invited any employee wanting to be heard in this respect to provide a written statement to the Fair Work Commission by Wednesday 16 December 2015.

[6] Subsequent to the Directions being issued, two employees provided written advice expressing concerns about the voting process and the proposal for individual agreements to specify over award provisions in the future. Further Directions were issued on 11 December requiring Liebherr-Australia to post additional advice to employees on all noticeboards and/or provide a copy to all employees by 15 December 2015. Liebherr-Australia advised that this was done. The matter was listed for a hearing on 22 December 2015. Mr Smith participated in this hearing, as did Mr Hogg, the Liebherr-Australia National Service Manager and Mr Esquilant, General Manager, both by telephone. No employee, or employee representative, participated in the hearing.

[7] At the hearing, Liebherr-Australia provided an undertaking in the following terms:

“Liebherr-Australia Pty Ltd undertake to ensure that payments and conditions established under the Agreement will not be reduced by any subsequent Award or individual agreement arrangements”

[8] As a result of the advice now before me, I am satisfied that the requirements of s.226 for the termination of an enterprise agreement have been met.

[9] I approve the termination of the Agreement. Pursuant to s.227 of the Act the termination of the Agreement will operate from 22 December 2015.

Printed by authority of the Commonwealth Government Printer

<Price code A, AC312312  PR575367 >