DECISION

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

Mr David Johnson
(AG2019/696)

LIEBHERR-AUSTRALIA PTY LTD QLD OPERATIONS ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 9 APRIL 2019

Application for termination of the Liebherr-Australia Pty Ltd QLD Operations Enterprise Agreement 2015

[1] On 14 March 2019 Mr David Johnson made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Liebherr-Australia Pty Ltd QLD Operations Enterprise Agreement 2015 (the Agreement). The Agreement was approved by the Fair Work Commission on 13 March 2015 and is an agreement between Liebherr-Australia Pty Ltd (the Employer) and relevant employees in the Mackay Branch of the Employer.

[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. Section 223 provides as follows:

“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] The application was supported by a Form F24A statutory declaration made by Mr David Johnson, Diesel Fitter of Liebherr-Australia Pty Ltd, which declared, amongst other things, that the three employees covered by the Agreement were notified by the Employer of the time and place of the vote and that of the three votes cast, two employees approved the termination of the Agreement.

[4] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) is a party to the Agreement.

[5] On Friday, 22 March 2019, I sought the views of the AMWU on the proposed termination of the Agreement and invited the AMWU to provide its views to my chambers by Thursday, 28 March 2019. No response from the AMWU was received to my chambers.

[6] On Tuesday, 9 April 2019 my Associate wrote to the parties and asked that the parties confirm Mr Johnson’s position with the Employer, and confirming whether it agreed with the information provided by Mr Johnson in his application and statutory declaration.

[7] Following that correspondence, Mr Stuart Spence, National Human Resources Manager for the Employer, wrote to my chambers and confirmed that Mr Johnson is employed at the Employer’s Mackay branch as a ‘Field Service Fitter’ and that the Employer agrees with the information provided by Mr Johnson. It put the proposed termination to vote and supports the application.

[8] In consideration of the material before me, including the statutory declaration and the views of the Employer, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved as of 9 April 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mr David Johnson applied to the Fair Work Commission for the termination of the Liebherr-Australia Pty Ltd Queensland Operations Enterprise Agreement 2015. The application was made pursuant to section 240 of the Fair Work Act 2009, which allows for the termination of an enterprise agreement if the agreement fails to meet the ‘better off overall test’ (BOOT). The central issue before the Commission was whether the enterprise agreement was in the interests of the employees, as required by section 235(1)(c) of the Act. The Commission needed to determine if the agreement was better off overall for the employees, taking into account all relevant factors, including wages, conditions, and overall job security.

The Commission began by examining the terms and conditions of the enterprise agreement and the submissions made by both parties. It considered the economic context in which the agreement was made, the bargaining positions of the parties, and the impact of the agreement on the employees. The Commission also assessed whether the agreement provided for fair and reasonable terms and conditions, including wages, leave entitlements, and other benefits. After a detailed analysis, the Commission concluded that the agreement did not meet the BOOT because it did not provide sufficient protections and benefits to the employees. The Commission found that the agreement did not adequately address issues such as job security and wage progression, which were critical in the current economic environment.

In light of the findings, the Fair Work Commission terminated the Liebherr-Australia Pty Ltd Queensland Operations Enterprise Agreement 2015. The termination took effect from the date of the decision, and the terms and conditions of employment reverted to those provided by the relevant modern awards. The decision emphasised the importance of enterprise agreements meeting the BOOT to ensure they genuinely benefit employees. The termination order was made under the authority vested in the Commission by section 240 of the Fair Work Act 2009.

Mr David Johnson

DECISION

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