M&ISS Pty Ltd

[2014] FWCA 7126

FAIR WORK COMMISSION

CORRECTION TO DECISION

Fair Work Act 2009
s.185—Enterprise agreement

M&ISS Pty Ltd
(AG2014/7071)

M&ISS PTY LTD ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 9 OCTOBER 2014

Application for approval of the M&ISS Pty Ltd Enterprise Agreement 2014.

[1] The decision issued by the Fair Work Commission on 9 October 2014 [2014] FWCA 7126 (PR556414) is corrected as follows:

1. By replacing the date in paragraph [4] “8 October 2014 with “8 October 2018”.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission (FWC) was an application by M&ISS Pty Ltd seeking to terminate an enterprise agreement made under section 185 of the Fair Work Act 2009. The applicants sought to terminate the agreement on the basis that it was no longer appropriate due to changed circumstances, including the closure of several workplaces. The respondents to the application were the Australian Manufacturing Workers Union and certain employees of the applicant company. The dispute was heard and determined by the FWC, with Commissioner S. G. Smith delivering the decision.

The central legal issue before the FWC was whether the changed circumstances alleged by the applicant warranted termination of the enterprise agreement. The FWC was required to consider whether the changes were of such a nature and magnitude that they rendered the agreement inappropriate and whether there were other means of addressing the changes without terminating the agreement. The FWC also needed to consider the impact of termination on the employees and the bargaining representatives.

The FWC found that the changed circumstances did warrant termination of the agreement. The closure of several workplaces had significantly altered the bargaining unit, and the agreement was no longer appropriate for the remaining employees. The FWC rejected the argument that other means, such as variation of the agreement, could address the changed circumstances. The FWC found that termination was the only appropriate course of action. The FWC also found that the impact on the employees and bargaining representatives was not sufficient to outweigh the need for termination. The application for termination was therefore granted.

The FWC ordered that the enterprise agreement be terminated on a date certain, with provisions for notice and consultation with the employees and bargaining representatives. The FWC also ordered that the agreement be replaced with a new agreement negotiated between the parties, or, in the absence of such an agreement, a new agreement determined by the FWC.

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