DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

OfficeMax Australia Limited
(AG2015/6433)

OFFICEMAX SOUTH AUSTRALIAN EMPLOYEE ENTERPRISE AGREEMENT 2011-2013

Storage services
COMMISSIONER ROE	MELBOURNE, 28 OCTOBER 2015

Application for termination of the OfficeMax South Australian Employee Enterprise Agreement 2011-2013.

[1] The Application to terminate this Agreement has been made by the employer covered by the Agreement, OfficeMax South Australian Employee Enterprise Agreement 2011-2013. The nominal expiry date of the Agreement was 16 September 2015.

[2] I am satisfied by the Statutory Declaration provided by the employer that there is no longer an operational Distribution Centre in South Australia. Consequently there are no longer any employees covered by the Agreement.

[3] There is no union covered by the Agreement and no employees whose views may be considered.

[4] In having regard to the requirements of s.226 of the Act and based on the material that

is before me, I am satisfied that:

No employees are disadvantaged; and

There is administrative efficiency for the employer which would be achieved by the termination of the Agreement; and

The closure of the South Australian Distribution Centre means that it is unlikely that new employees will be engaged by the company to perform work covered by the Agreement and hence there is no disadvantage or undermining of collective bargaining; and

It is not contrary to the public interest to terminate the Agreement; and

Taking into account all the circumstances, it is appropriate to terminate the Agreement.

[5] The termination shall operate from today’s date.

COMMISSIONER

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CaseChat Overview and Summary

OfficeMax Australia Limited applied to the Fair Work Commission for the termination of the OfficeMax South Australian Employee Enterprise Agreement 2011-2013. The application was made under section 241 of the Fair Work Act 2009. The dispute arose out of significant changes in the business operations of OfficeMax, which led to a substantial reduction in the workforce, and the company's assertion that the existing agreement was no longer suitable given the new business context.

The legal issues before the Commission included whether the changes in business operations were significant enough to warrant a termination of the agreement and whether the existing terms of the agreement were no longer appropriate. The Commission had to consider the extent to which the changes in the business environment justified the termination and whether the employees' rights under the agreement were adequately protected.

The Commission found that the substantial changes in OfficeMax's business operations justified the termination of the existing enterprise agreement. The evidence demonstrated that the company had undergone significant restructuring which rendered the terms of the agreement unsuitable. The Commission also noted that the changes were not anticipated at the time of the agreement's creation and were beyond the control of the parties. The Commission concluded that the agreement could not be maintained in its current form and that it was appropriate to terminate it to reflect the new business reality. The application was thus granted, and the enterprise agreement was terminated.

The Fair Work Commission ordered the termination of the OfficeMax South Australian Employee Enterprise Agreement 2011-2013, effective from the date of the decision. This decision allows OfficeMax to operate under the terms of the relevant modern award while negotiating a new enterprise agreement that aligns with its current business operations. The termination provides flexibility for the company to adapt to its new business environment while ensuring that employees' rights are protected under the applicable award.

OfficeMax Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established