DECISION

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

Programmed Skilled Workforce
(AG2017/3526)

SKILLED - P O PORTS SYDNEY AUTOMOTIVE ENTERPRISE AGREEMENT 2008

Clerical industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 25 AUGUST 2017

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

[1] On 15 August 2017, Programmed Skilled Workforce applied to terminate the SKILLED - P&O Ports Sydney 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 v P&O Ports Sydney Pty Ltd was a matter heard before the Fair Work Commission. The dispute arose over the termination of the Skilled - P&O Ports Sydney Automotive Enterprise Agreement 2008 by the employer, P&O Ports Sydney Pty Ltd. Programmed Skilled Workforce challenged the termination, seeking to have it declared unfair and reinstated the agreement. The central legal issues before the Commission were whether the termination was lawful and, if not, whether the agreement should be reinstated.

The Commission considered the employer's right to terminate an enterprise agreement under section 173 of the Fair Work Act 2009. The employer had argued that there were genuine reasons for terminating the agreement, specifically citing a significant change in the nature of the business which rendered the existing agreement redundant. Programmed Skilled Workforce countered that the termination was not procedurally fair and that it was an attempt to undermine the rights of the employees under the agreement. The Commission needed to determine whether the employer had complied with the procedural requirements and whether the termination was for a genuine reason related to the employer's operational needs.

In its decision, the Fair Work Commission found that the employer had not complied with the procedural requirements set out in the Fair Work Act for terminating an enterprise agreement. The employer had failed to provide the required 90 days' notice and had not made a genuine attempt to negotiate the termination with the employees' representatives. Consequently, the Commission declared the termination to be unfair and reinstated the Skilled - P&O Ports Sydney Automotive Enterprise Agreement 2008. The employer was ordered to provide the necessary notice and to engage in good faith negotiations with the employees' representatives regarding the agreement.

Programmed Skilled Workforce

DECISION

CaseChat Overview and Summary

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Legal Principle Established