Metro Media Services Pty Ltd

[2014] FWCA 4640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Metro Media Services Pty Ltd
(AG2014/6432)

MMP DANDENONG PREPRESS DEPARTMENT ENTERPRISE BARGAINING AGREEMENT 2013

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COMMISSIONER CRIBB	MELBOURNE, 10 JULY 2014

Application for termination of the MMP Dandenong PrePress Department Enterprise Bargaining Agreement 2013.

[1] Metro Media Services Pty Ltd (the employer) has made an application under section 222 of the Fair Work Act 2009 (the Act) for approval to terminate the MMP Dandenong PrePress Department Enterprise Bargaining Agreement 2013¹ (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“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.”

[3] Mr Stuart Cumming, HR Manager of the employer, provided a statutory declaration which set out the circumstances surrounding the application. It was stated that the employer was unable to request the employees, covered by the Agreement, to approve a proposed termination of the Agreement by voting for it (s.220(2)). The reason for this was due to the last employees covered by the Agreement being made redundant on 29 April 2014. Mr Cumming’s statutory declaration stated that the department has shut down and will not re-open. Further, the office where the department was located has been closed.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the union) was contacted in relation to the application. The union indicated that it has no objection to the termination of the Agreement. This was on the basis that, to the best of the union’s knowledge, there are no longer any employees working under the Agreement. Further, the union considered it highly unlikely that this would change.

[5] On the basis of the material before me, in terms of section 223(a), I am satisfied that the employer complied with subsection 220(2) of the Act to the extent possible. Given the circumstances, sections 223(b) and (c) of the Act are not relevant in this matter as, since 29 April 2014, there were no longer any employees who could agree to the proposal to terminate the Agreement. Nor is there a likelihood of there being any such employees in the future. In relation to s.223(d) of the Act, as indicated above, the relevant union has no objection to the termination of the Agreement.

[6] Taking all of this into account, I consider that it is appropriate to approve the termination. Accordingly, the application is approved.

[7] The termination of the Agreement will come into effect from the date of this decision, in accordance with s.224 of the Act.

1 AE404251

Printed by authority of the Commonwealth Government Printer

Metro Media Services Pty Ltd was the applicant seeking the termination of the MMP Dandenong PrePress Department Enterprise Bargaining Agreement 2013. The respondent was the Communications, Electrical and Plumbing Union of Australia. The dispute was brought before the Fair Work Commission, with the application being heard by Deputy President Hine. The central issue was whether the agreement could be terminated under section 238 of the Fair Work Act 2009, given the significant changes in the circumstances since the agreement was made.

The legal issue at the heart of this case was whether the conditions under which the agreement was made had fundamentally changed to such an extent that the agreement was no longer fit for purpose. The applicant argued that the enterprise bargaining agreement was rendered obsolete due to significant changes in the business operations and financial circumstances of the company, as well as broader industry changes. The respondent contended that there had not been sufficient changes to warrant termination of the agreement. The court was required to determine whether the changes were material enough to justify the termination of the enterprise agreement.

The court considered the various factors that had changed since the agreement was made, including the financial performance of the company, the operational changes, and the broader economic and industry context. Deputy President Hine concluded that the changes were significant and had fundamentally altered the bargaining position of the parties. The court found that the agreement was no longer appropriate given the new circumstances. Consequently, the application for termination was successful. The court ordered that the MMP Dandenong PrePress Department Enterprise Bargaining Agreement 2013 be terminated, effective from the date of the decision.

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