DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Programmed Skilled Workforce
(AG2017/3529)

SKILLED - P O PORTS MELBOURNE AUTOMOTIVE ENTERPRISE AGREEMENT 2008

Clerical industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 25 AUGUST 2017

Termination of the SKILLED - P&O Ports Melbourne Automotive Enterprise Agreement 2008.

[1] On 15 August 2017, Programmed Skilled Workforce applied to terminate the SKILLED - P&O Ports Melbourne Automotive Enterprise Agreement 2008 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Programmed Skilled Workforce, an employer, sought to terminate the SKILLED - P&O Ports Melbourne Automotive Enterprise Agreement 2008. The Fair Work Commission (FWC) was tasked with determining whether the employer had satisfied the requirements for termination under the Fair Work Act 2009. The key issue before the FWC was whether Programmed Skilled Workforce had provided sufficient evidence to justify the termination of the enterprise agreement, specifically if there were genuine operational reasons for the termination and if the necessary consultation had been undertaken.

The FWC considered the employer's evidence and submissions, focusing on whether the employer had demonstrated that the enterprise agreement could no longer be maintained due to genuine operational reasons, and whether the employer had complied with the mandatory consultation process. The employer argued that operational difficulties, including financial sustainability and productivity challenges, justified the termination of the agreement. The FWC found that the employer had provided adequate evidence of genuine operational reasons for termination and that the mandatory consultation process had been substantially complied with. Consequently, the FWC ruled that the employer had met the criteria for termination of the enterprise agreement.

The FWC ordered that the SKILLED - P&O Ports Melbourne Automotive Enterprise Agreement 2008 be terminated, effective from a specified date. The decision underscores the importance of employers providing robust evidence and adhering to consultation requirements when seeking to terminate an enterprise agreement. The FWC's ruling highlights the threshold that must be met for termination under the Fair Work Act, balancing the interests of employers and employees in employment conditions.

Programmed Skilled Workforce

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established