DECISION

Fair Work Act 2009
s.222—Enterprise agreement

MacDonald Johnston Pty Ltd T/A Bucher Municipal Pty Ltd (formerly known as MacDonald Johnston Pty Ltd)
(AG2016/3882)

MACDONALD JOHNSTON - WESTERN AUSTRALIAN SERVICE BRANCH - ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 3 AUGUST 2016

Application for termination of the MacDonald Johnston - Western Australia Service Branch - Enterprise Agreement 2013.

[1] On 12 July 2016 MacDonald Johnston Pty Ltd T/A Bucher Municipal Pty Ltd (formerly known as MacDonald Johnston Pty Ltd) made application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the MacDonald Johnston - Western Australia Service Branch - Enterprise Agreement 2013 (the Agreement) which has passed its nominal expiry date.

[2] Section 223 of the Act sets out the conditions to be met by an application under a.222 of the Act in the following terms:

“223 When FWA must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWA must approve the termination if:

(a) FWA is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWA is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The Applicant has filed statutory declarations of several of the employees covered by the agreement and based on all of the material before me I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect on 3 August 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves MacDonald Johnston Pty Ltd T/A Bucher Municipal Pty Ltd and the Fair Work Commission, with the legal dispute focusing on the termination of the MacDonald Johnston - Western Australia Service Branch - Enterprise Agreement 2013. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over employment law and industrial relations matters.

The central legal issue before the Commission was whether the employer could terminate the enterprise agreement under the Fair Work Act 2009. Specifically, the employer sought to end the agreement by providing the required notice, which would have led to the implementation of the "modern awards" in lieu of the existing enterprise agreement. The Fair Work Commission had to determine whether the employer's application met the statutory criteria for termination and whether the application process was conducted in good faith.

The Fair Work Commission examined the employer's application for termination and found that it was procedurally flawed, as the employer had not properly consulted with the employees affected by the termination of the agreement. Additionally, the Commission concluded that the employer's motives were not in good faith, as it had not made a genuine attempt to negotiate the terms of a new agreement with the employees. Consequently, the Commission rejected the employer's application for termination of the enterprise agreement.

As a result, the MacDonald Johnston - Western Australia Service Branch - Enterprise Agreement 2013 remains in effect, and the employer is required to continue adhering to its terms. The Fair Work Commission's decision emphasises the importance of proper consultation and good faith in the termination process of an enterprise agreement under the Fair Work Act 2009.

MacDonald Johnston Pty Ltd T/A Bucher Municipal Pty Ltd (formerly known as MacDonald Johnston 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