O’Brien Glass Industries Limited

[2023] FWCA 2327

[2023] FWCA 2327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

O’Brien Glass Industries Limited

(AG2023/2425)

O’BRIEN® ACT GLAZIERS ENTERPRISE BARGAINING AGREEMENT 2019 – 2022

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 27 JULY 2023

Application for termination of the O’Brien® ACT Glaziers Enterprise Bargaining Agreement 2019 – 2022.

1. On 19 July 2023, O’Brien Glass Industries Limited (Applicant) made an application to terminate the O’Brien® ACT Glaziers Enterprise Bargaining Agreement 2019 – 2022 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

1. The Agreement does not cover any employee organisations and has passed its nominal expiry date of 30 September 2022.

1. Sections 225 and 226 of the Act provide:

225     Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)one or more of the employers covered by the agreement;

(b)an employee covered by the agreement;

(c)an employee organisation covered by the agreement.

226     Terminating an enterprise agreement after its nominal expiry date

(1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a)the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)all of the following apply:

(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)     However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)       This subsection covers a termination of the employment of an employee:

(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)because of the insolvency or bankruptcy of the employer.

(3)       In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)the employees (unless there are no employees covered by the agreement);

(b)each employer;

(c)each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)       In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)whether bargaining for the proposed enterprise agreement is occurring; and

(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)       In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

1. The application is supported by a statutory declaration of Ms Akile Numan, HR Business Partner of the Applicant. According to Ms Numan, the Agreement covers all persons engaged as glaziers in the Applicant’s only branch in the ACT. Ms Numan stated that following the closure of the ACT branch on 30 June 2023, the Applicant does not employ any employees under the Agreement and does not intend to engage employees under the Agreement in the foreseeable future. The Applicant has separate agreements which cover its workforce in other states.

1. I am satisfied that all of the requirements set out in s.226 of the Act have been met and that it is appropriate in all the circumstances to terminate the Agreement.

1. The termination operates from 27 July 2023.

DEPUTY PRESIDENT

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