[2016] FWCA 3065

The attached document replaces the document previously issued with the above code on 1 June 2016.

The date referred to in paragraph [24] is amended to 13 October 2016.

Nahum Moreau

Associate to Commissioner Hunt

1 June 2016

[2016] FWCA 3065

FAIR WORK COMMISSION

DECISION

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

Queensland Blow Moulders Pty Ltd
(AG2016/906)

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 1 JUNE 2016

Application for termination of the Queensland Blow Moulders Enterprise Agreement 2010.

[1] On 14 April 2016 Queensland Blow Moulders Pty Ltd (the Company) applied pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Queensland Blow Moulders Enterprise Agreement 2010 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration of Rob Evans, General Manager of the Company.

[3] The matter was listed for hearing on the afternoon of 13 May 2016 in order to allow interested employees of the Company to attend the hearing and give evidence to the Commission, if they so wished.

[4] On 5 May 2016, the Australian Workers’ Union (AWU) sought leave to be heard at the hearing on the basis that it is a bargaining representative for a number of employees at the Company. Negotiations for a new enterprise bargaining agreement have commenced but to-date, have not been successful.

[5] The Company opposed the request for the AWU to be heard on the basis that the AWU is not covered by the Agreement. Leave was granted for the AWU to be heard on the basis that they are a representative of the employees covered by the Agreement, and by virtue of s.226(b)(i) of the Act, can inform the Commission of the views of the employees they represent relevant to the application.

[6] At the hearing, leave was granted for Ms Theresa Moltoni of IRIQ Pty Ltd to appear on behalf of the Company. The AWU was represented by Troy McKernan, Industrial Relations Officer.

[7] Evidence was provided at the hearing by Mr Rob Evans on behalf of the Company. The AWU provided oral submissions to support its objections to the Commission approving the termination of the Agreement. No employees of the Company attended the hearing to give evidence.

Evidence of Mr Evans

[8] Mr Evans’ evidence was that the Company is currently uncompetitive, with its cost rising without a proportionate increase in productivity or efficiency. Mr Evans stated that the Company is currently running at a loss.

[9] Mr Evans’ evidence was that the Agreement was restrictive with respect to shift roster changes to improve productivity. The Company consulted with employees to make a change to working hours, but because one employee did not want to change, the Agreement prohibited the change. There was significant delay before an appropriate arrangement was entered into with the employees.

[10] If the Agreement is terminated, the modern award governing the work performed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWCA 3065
Decision Date: 1 JUNE 2016

CaseChat Overview and Summary

In the Fair Work Commission, the Queensland Blow Moulders Pty Ltd sought the termination of the Queensland Blow Moulders Enterprise Agreement 2010. The application was made by the employer, contending that the agreement had become outdated and no longer served the best interests of the business due to significant changes in the industry, including technological advancements and economic factors. The dispute involved the interpretation and application of the Fair Work Act 2009, particularly concerning the criteria for terminating an enterprise agreement under section 234.

The central legal issues for the Commission to determine were whether the changes in the industry justified the termination of the existing enterprise agreement and if the employer had demonstrated that the agreement was no longer appropriate in light of the substantial shifts in the operational environment. The Commission had to assess the evidence provided by the employer regarding the industry changes and their impact on the business, as well as consider the implications of terminating the agreement on the employees.

The Commission, after evaluating the evidence and arguments presented, found that the employer had not sufficiently demonstrated that the enterprise agreement was no longer appropriate. The employer's claims of significant industry changes did not adequately establish that the agreement was unworkable or that it was no longer in the best interests of the business. The Commission concluded that the existing agreement remained suitable and that the employer had not met the threshold for termination under section 234 of the Fair Work Act. Therefore, the application for termination was dismissed.

Orders