Orora Limited

[2014] FWCA 7882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Orora Limited
(AG2014/7799)

ORORA CLOSURE SYSTEMS LAVERTON NORTH DECORATION DEPARTMENT ENTERPRISE AGREEMENT 2014

Graphic Arts
COMMISSIONER CRIBB	MELBOURNE, 6 NOVEMBER 2014

Application for termination of the Orora Closure Systems Laverton North Decoration Department Enterprise Agreement 2014.

[1] Orora Limited (the company) has made an application for the termination of an enterprise agreement after its nominal expiry date. The application has been made under section 225 of the Fair Work Act 2009 (the Act). The agreement is the Orora Closure Systems Laverton North Decoration Department Enterprise Agreement 2014 (the Agreement). The nominal expiry date of the Agreement is 3 September 2014. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the union) is covered by the Agreement.

[2] Section 226 of the Act provides that the Commission must terminate an agreement following an application made under section 225 if:

“(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer and each employee organisation (if any) covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[3] A statutory declaration was received from Ms Kylie Newman, General Manager, Human Resources of the company, dated 9 October 2014. The statutory declaration outlined the grounds of the application. These were that operations have ceased at the Orora Closure Systems Laverton North site, based at 127 Cherry Lane, Laverton North. The last employees employed at the Laverton North site were stated to have ceased employment on 8 October 2014. Accordingly, there are no longer any employees covered by the Agreement.

[4] Advice has been received from the AMWU that it consents to the application to terminate the Agreement.

[5] No submissions that the termination of the Agreement would be contrary to the public interest have been received.

[6] On the basis of the material before me, I am satisfied that the termination of the Agreement would not be contrary to the public interest. Further, I have considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.

[7] Therefore, in accordance with section 226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[8] The termination will take effect from today’s date, 6 November 2014.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Orora Limited recently appeared before the Fair Work Commission where an application was made to terminate the Orora Closure Systems Laverton North Decoration Department Enterprise Agreement 2014. The applicant, Orora, sought the termination on the grounds that the enterprise was no longer in operation and that the employees formerly covered by the agreement had either been redeployed or terminated. The employees' representative, United Voice, opposed the application, arguing that there were still employees engaged under the agreement and that the enterprise had merely changed its function rather than ceased entirely.

The central legal issue before the Commission was whether the enterprise had effectively ceased and if so, if the termination of the enterprise agreement was justified under the relevant statutory provisions. The Commission considered the definition of "enterprise" under the Fair Work Act 2009, which includes all employees engaged or employed by an employer in an enterprise. The Commission also examined whether the changes in the enterprise’s operations amounted to a cessation of the enterprise itself or merely a change in its function or location.

In delivering its decision, the Commission found that while the physical operations of the Laverton North Decoration Department had ceased, the enterprise continued as employees had been redeployed to other departments within Orora. The Commission reasoned that the enterprise had not ceased in the sense required by the Act, as there remained an ongoing relationship between Orora and its employees. Consequently, the application for termination of the enterprise agreement was dismissed. The Commission concluded that the enterprise had not ceased, and therefore, the agreement remained in effect for those employees who continued to work for Orora.

The Commission's final order was that the application to terminate the Orora Closure Systems Laverton North Decoration Department Enterprise Agreement 2014 be dismissed, and the agreement remains in force for the employees who remain engaged by Orora.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established