Marubeni-Itochu Tubulars Oceania Pty Ltd Summary

[2014] FWCA 5411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Marubeni-Itochu Tubulars Oceania Pty Ltd
(AG2014/8492)

MARUBENI - ITOCHU TUBULARS OCEANIA PTY LTD COLLECTIVE AGREEMENT 2009

Oil and gas industry
COMMISSIONER CLOGHAN	PERTH, 15 AUGUST 2014

Application for termination of the Marubeni-Itochu Tubulars Oceania Pty Ltd Collective Agreement 2009.

[1] On 31 July 2014, Marubeni-Itochu Tubulars Oceania Pty Ltd (Employer) made application for termination of the Marubeni-Itochu Tubulars Oceania Pty Ltd Collective Agreement 2009 (Agreement).

[2] The application is made pursuant to s.222 of the Fair Work Act 2009 (FW Act).

[3] Pursuant to s.223 of the Act, the Fair Work Commission (Commission) must approve the termination of an enterprise agreement if:

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

(d) FWC 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.

[4] I am satisfied, based upon a statutory declaration provided by Mr Kevin Cilliers, Chief Financial Officer and the Form F24 completed by Mr McClements who is the signatory, as employee representative, in application AG2014/1981 also filed on 31 July 2014 for a replacement enterprise agreement to the Agreement, that the provisions of s.223 of the FW Act have been met.

[5] Accordingly, I order that the Agreement be terminated from 21 August 2014 in accordance with s.224 of the FW Act.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by Marubeni-Itochu Tubulars Oceania Pty Ltd for the termination of its existing collective agreement with the Electrical Trades Union of Australia. The matter was brought before the Fair Work Commission (FWC) to determine the validity of the application under the Fair Work Act 2009. The dispute centred around whether the company had provided adequate notice and justification for seeking the termination of the collective agreement, and whether such a termination would cause undue hardship to the employees covered by the agreement.

The central legal issue before the FWC was whether the company had fulfilled the statutory requirements for terminating a collective agreement. This involved assessing the company's evidence regarding changes in the business environment and operational conditions that necessitated the termination, as well as evaluating the potential impact on employees. The FWC also needed to consider whether the company had acted in good faith and whether the application was made for a proper purpose.

The FWC concluded that the company had not adequately demonstrated that the termination of the collective agreement was necessary or in the best interest of the employees. The company's evidence did not sufficiently substantiate the claimed operational changes or justify the need for termination. Furthermore, the FWC found that the company had not shown that the termination would not cause undue hardship to the employees. Consequently, the application was dismissed, and the collective agreement remained in effect. The FWC emphasised the importance of companies providing robust evidence and acting in good faith when seeking to terminate collective agreements.

Marubeni-Itochu Tubulars Oceania Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established