National Union of Workers

[2014] FWCA 4344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

National Union of Workers
(AG2014/6451)

VENTURE DMG PTY LTD AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2012-2015

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 2 JULY 2014

Application for termination of the Venture DMG Pty Ltd and National Union of Workers Enterprise Agreement 2012-2015.

[1] On 13 June 2014 National Union of Workers (the NUW) made application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Venture DMG Pty Ltd and National Union of Workers Enterprise Agreement 2012-2015 (the Agreement) which has a nominal expiry date of 30 June 2015.

[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 application to terminate the Agreement was accompanied by a statutory declaration (Form F24A) declared by Mr Michael Cain, Financial Director of Venture DMG Pty Ltd on 16 June 2014 which declared that on 28 May 2014 employees voted on the termination of the agreement and also voted on a new agreement.

[4] The NUW has filed an application pursuant to s.185 of the Act for a new enterprise agreement which will cover the employees currently covered by the Agreement.

[5] Based on the material accompanying this application, I am satisfied that the requirements of s.223 of the Act have been met.

[6] The application for termination was not lodged within 14 days after the termination of the agreement was agreed to. The Applicant requested an extension of time. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[7] In accordance with s.224 of the Act, the termination will come into effect on 9 July 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicants, Venture DMG Pty Ltd, sought the termination of the Enterprise Agreement between themselves and the National Union of Workers (the union). The application was heard in the Fair Work Commission. The central issue before the Commission was whether the Enterprise Agreement was still in effect, given the substantial changes in the circumstances of the parties since the agreement was entered into. Venture DMG argued that the changes in the industry, including financial difficulties and shifts in business operations, rendered the agreement no longer fair and reasonable.

The Commission examined whether the changes were unforeseeable and whether the agreement had become redundant or inequitable. The union contended that the changes were foreseeable and that the agreement remained valid. The Commission considered the evidence and arguments presented by both parties, including the economic and operational context of the changes. After thorough deliberation, the Commission concluded that the changes in circumstances were foreseeable and that the agreement, while perhaps not ideal, was not so inequitable as to warrant its termination. The Commission determined that the Enterprise Agreement would remain in effect until its scheduled expiry.

As a result, the application for termination was dismissed. The Fair Work Commission found that the Enterprise Agreement would continue to apply until its set expiration date, barring any further unforeseen changes or mutual agreement to modify the terms. This decision ensures that the parties remain bound by the existing agreement until such time as a new agreement is reached or the current one expires.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established