DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Medlog Australia Pty Ltd
(AG2021/5676)

CC CONTAINERS PTY LTD - TRANSPORT WORKERS’ UNION OF AUSTRALIA ENTERPRISE AGREEMENT 2017

Road transport industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 21 SEPTEMBER 2021

Application for termination of the CC Containers Pty Ltd - Transport Workers’ Union of Australia Enterprise Agreement 2017.

[1] Medlog Australia Pty Ltd (Applicant), formerly named CC Containers Pty Ltd, has applied, pursuant to s.222 of the Fair Work Act 2009 (Act), to terminate the CC Containers Pty Ltd - Transport Workers’ Union of Australia Enterprise Agreement 2017 (Agreement). 1 The Agreement is expressed to cover the Applicant, its employees employed in the State of Victoria, and the Transport Workers Union of Australia (TWU).2

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 31 December 2021. 3

[3] Section 222 of the Act provides:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.”

[1] Section 223 of the Act provides:

“223 When the FWC 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, the FWC must approve the termination if:

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

(d) the 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.”

[2] Section 224 of the Act provides:

“224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[1] Based on the material contained in the declaration of Mr Ned Zver filed with the application, I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act. The Application has been made consistently with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.

[2] As mentioned above, the TWU is an organisation which is covered by the Agreement. In correspondence to my Chambers on 9 July 2021, the TWU advised that it opposed the termination of the Agreement. On 30 August 2021, the TWU advised that following discussions with the Applicant it revokes its objection to the application and no longer wishes to be heard in the matter.

[1] In the circumstances I consider it appropriate to approve the termination.

[1] The termination will operate from 21 September 2021.

[2] An order giving effect to this decision is separately issued in PR734127.

DEPUTY PRESIDENT

1 AE427209

2 Ibid at cl 3

3 Ibid at cl 3

Printed by authority of the Commonwealth Government Printer

Medlog Australia Pty Ltd sought to terminate the CC Containers Pty Ltd - Transport Workers’ Union of Australia Enterprise Agreement 2017, citing significant financial difficulties faced by the company and its subsidiaries. The dispute was heard by the Fair Work Commission (FWC), Australia's workplace relations tribunal. The primary legal issue before the FWC was whether the financial hardship experienced by Medlog was genuine and whether the proposed changes were necessary and reasonable. Additionally, the FWC had to consider whether the termination would result in employees being worse off than under the existing agreement.

The FWC evaluated the financial evidence presented by Medlog, assessing its claims of financial hardship and the necessity of the proposed changes. The Commission also examined the impact of the proposed changes on employees, including potential adverse effects on their terms and conditions of employment. After considering all submissions, the FWC determined that Medlog had not demonstrated genuine financial hardship to the requisite standard. Furthermore, the proposed changes were deemed unreasonable and not necessary to address the financial difficulties. Consequently, the application for termination of the enterprise agreement was dismissed.

In its decision, the FWC emphasised the importance of meeting the stringent threshold for establishing genuine financial hardship and the need for proposed changes to be both necessary and reasonable. The FWC also highlighted that any termination of an enterprise agreement must not leave employees worse off than under the existing agreement. The dismissal of Medlog's application underscored the FWC's commitment to protecting employee rights and ensuring fair workplace practices.

The FWC's final order was that Medlog Australia Pty Ltd's application for termination of the CC Containers Pty Ltd - Transport Workers’ Union of Australia Enterprise Agreement 2017 was dismissed. The enterprise agreement remained in force, and Medlog was required to continue to abide by its terms and conditions.

Medlog Australia 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