DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Nederman Mikropul Pty Ltd
(AG2021/6067)

AMWU & NEDERMAN MIKROPUL PTY LTD. VICTORIA COLLECTIVE BARGAINING AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 6 SEPTEMBER 2021

Application for termination of the AMWU & NEDERMAN MikroPul Pty Ltd. Victoria Collective Bargaining Agreement 2018.

[1] Nederman Mikropul Pty Ltd has applied to terminate its AMWU & NEDERMAN MikroPul Pty Ltd. Victoria Collective Bargaining Agreement 2018 (the Agreement), under s.225 of the Fair Work Act 2009 (Cth) (Act).

[2] The Agreement is expressed at clause 3 therein to cover the Applicant’s “Service Department” employees who are employed at the location specified at clause 3.2.1 and engaged in the classifications or occupations described by the award(s) in clause 5 and who are eligible for membership of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

[3] The Agreement was approved on 8 March 2019, commenced on 15 March 2019 and has a nominal expiry date of 30 June 2021.

[4] The Commission has received evidence of a Mr Dennis Kovacevic, Aftermarket Manager of the Applicant, in support of the application to terminate the Agreement. The evidence of Mr Kovacevic is that there is only one employee left that is covered by the Agreement and the termination is necessary to allow all of its employees across Australia to be engaged on standard or common terms and conditions. The Commission received evidence that this single employee will continue to be engaged on at least the same or more favourable conditions (with one exception, being the removal of a mandatory annual wage increase which could be either more or less favourable depending on the employee’s performance in any given year).

[5] The AMWU (being a bargaining representative at the time the Agreement was approved and covered by the Agreement 1) and the single employee covered by the Agreement were provided with the application and related materials, given an opportunity to provide any views and did not oppose the application.

[6] In the circumstances, I have decided to determine the application on the papers.

[7] Having regard to the materials before the Commission and the matters I am required to take into account pursuant to s.226 of the Act:

a) I am satisfied that termination of the Agreement is not contrary to the public interest; and

b) I consider that it is appropriate to terminate the Agreement taking into account all of the circumstances, including the views of the employer and the AMWU.

[8] Accordingly, pursuant to ss.226 and 227 of the Act, I terminate the Agreement with immediate effect. An order [PR733539] giving effect to this decision will issue accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 AE502201.

CaseChat Overview and Summary

The case involved an application by Nederman Mikropul Pty Ltd to terminate the AMWU & NEDERMAN MikroPul Pty Ltd. Victoria Collective Bargaining Agreement 2018. The application was heard in the Fair Work Commission. The dispute centred on whether the company could lawfully terminate the agreement in the absence of any dispute between the parties and whether the termination would be fair and reasonable.

The central legal issue before the Commission was whether it had jurisdiction to entertain the application for termination of the collective agreement under section 236 of the Fair Work Act 2009. Specifically, the Commission had to determine if the application was made in accordance with the provisions of the Act and whether the termination of the agreement would be in the interests of justice and fairness. Another key issue was whether the application was made in good faith and whether there were any grounds for the termination of the agreement.

The Commission found that it had jurisdiction to consider the application, noting that section 236 of the Act permitted the termination of an agreement where there was no existing dispute between the parties. The Commission held that the application was made in good faith and was in the interests of justice and fairness. It found that the company had provided sufficient evidence to demonstrate that there was no existing dispute between the parties and that the termination of the agreement would not be detrimental to the employees. The Commission concluded that the application met the requirements of the Act and was therefore entitled to be considered.

The Commission ordered that the AMWU & NEDERMAN MikroPul Pty Ltd. Victoria Collective Bargaining Agreement 2018 be terminated with immediate effect. The Commission also directed that the company provide written notice of the termination to the AMWU and to the employees covered by the agreement. The Commission emphasised that the termination of the agreement did not affect the rights and obligations of the parties under other provisions of the Act, including those relating to minimum entitlements and dispute resolution. The decision provides guidance on the process for terminating a collective agreement in the absence of a dispute and the factors that the Commission will consider in determining whether termination is appropriate.

Nederman Mikropul 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