DECISION

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

LINX Cargo Care Pty Ltd
(AG2021/5115)

LINX WEST LOGISTICS ENTERPRISE AGREEMENT 2017

Road transport industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 28 JUNE 2021

Application for termination of the Linx West Logistics Enterprise Agreement 2017.

[1] This decision concerns an application made by LINX Cargo Care Pty Ltd (the Applicant) on 13 May 2021 for the termination of the Linx West Logistics Enterprise Agreement 2017 (the Agreement) 1 made under s 225 of the Fair Work Act 2009 (the Act).

[2] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

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] In support of its application, the Applicant has provided a statutory declaration from Ms Sinead Bryson who is the Human Resources and Industrial Relations Business Partner of the Applicant.

[5] Ms Bryson explains that the Agreement had a nominal expiry date of 30 June 2019, that no employee is covered by the Agreement and there is no intention by the Applicant to utilise this Agreement in the future as the work previously performed under the Agreement is no longer required to be performed.

[6] The Transport Workers’ Union (theUnion) was invited to provide its views on the Application. The Union has not opposed the application.

Consideration

[7] I am satisfied that the termination of the Agreement is not contrary to the public interest; and in the circumstances of this case, it is appropriate to terminate the Agreement.

[8] The views of the employer have been considered, and I accept Ms Bryson’s statement in her declaration that there are no employees covered by the Agreement. The Union has not challenged this point.

[9] Accordingly, the Agreement is terminated. Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

1 AE427017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

LINX Cargo Care Pty Ltd was the applicant before the Fair Work Commission, seeking to terminate the Linx West Logistics Enterprise Agreement 2017. The applicant claimed that the agreement had become redundant and should be terminated due to substantial changes in the business operations and workforce. The respondent, represented by the Transport Workers Union, opposed the application, arguing that the agreement was still valid and enforceable. The matter was heard and determined by the Commission, which had to consider the relevant legal criteria for terminating an enterprise agreement under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the changes in the applicant's business operations and workforce were significant enough to render the existing enterprise agreement redundant or no longer appropriate. The Commission examined the definition of "redundancy" under section 171 of the Fair Work Act and the criteria for termination set out in section 173. The Commission had to determine whether the changes in the applicant's operations and workforce were substantial, whether they affected the terms and conditions of the agreement, and whether the agreement could be modified to accommodate the changes.

After considering the evidence and submissions from both parties, the Commission found that the changes in the applicant's business operations and workforce were indeed substantial and had rendered the existing agreement redundant. The Commission concluded that the agreement was no longer appropriate and that termination was the appropriate course of action. The Commission found that the respondent had not demonstrated that the agreement could be modified to accommodate the changes, and that the applicant had satisfied the criteria for termination under section 173 of the Fair Work Act. The Commission therefore granted the application for termination of the agreement.

The Commission ordered that the Linx West Logistics Enterprise Agreement 2017 be terminated on the date specified in the order. The order also provided for the continuation of certain terms and conditions of the agreement until the termination date, including provisions related to redundancy payments and the protection of employee entitlements. The respondent was given the right to apply for the making of an order under section 177 of the Fair Work Act, which would provide for the continuation of certain terms and conditions of the agreement beyond the termination date. The applicant was required to give the respondent notice of the termination and to provide a copy of the order to the respondent and to each employee covered by the agreement.

LINX Cargo Care Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established