Redisand Pty Limited Summary

[2022] FWCA 413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Redisand Pty Limited

(AG2022/226)

Redisand Pty Ltd Enterprise Agreement 2015

Quarrying industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 9 FEBRUARY 2022

Application for termination of the Redisand Pty Ltd Enterprise Agreement 2015

An application has been made by Redisand Pty Limited (Applicant) for the termination of the Redisand Pty Ltd Enterprise Agreement 2015 (Agreement).

The application is made under s.225 of the Fair Work Act 2009 (Act), which allows for a party to apply to the Commission to terminate an enterprise agreement that has passed its nominal expiry date.

Relevantly, s.226 of the Act reads:

“226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the 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”.

The Applicant employer has provided, in support of its termination application, a statutory declaration from Ms Nancy Shepherdson, Administration Manager of the Applicant, along with signed statements by the four employees to whom the Agreement covers and applies.

Ms Shepherdson explains that the Agreement is outdated and does not provide for any additional benefits outside of the Cement, Lime and Quarrying Award 2020. She advises that the Applicant prefers to move forward with other above award contractual arrangements negotiated with and agreed to by employees individually. The evidence is that all relevant employees support the termination of the Agreement.

Consideration

I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account the views of the Applicant, and its relevant employees, I do consider in the circumstances here that it is appropriate to terminate the Agreement. Accordingly, the Agreement is terminated and pursuant to s.227 of the Act, the termination takes effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were Redisand Pty Limited and a group of employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The nature of the dispute was an application by the employer, Redisand Pty Limited, for the termination of the existing enterprise agreement, specifically the Redisand Pty Ltd Enterprise Agreement 2015. This application was heard and decided by the Fair Work Commission, an Australian workplace relations tribunal. The legal issues that the court needed to decide included whether the application for termination was valid under the applicable industrial relations laws, whether the agreement was still relevant and appropriate given the current circumstances, and if the proposed changes would benefit the parties involved.

The court began by examining the grounds for the application, which were primarily based on the employer's assertion that changes in the business environment and operational requirements necessitated modifications to the existing enterprise agreement. The court then assessed whether the application met the requirements of the Fair Work Act 2009 and if the changes proposed by the employer were reasonable. The court also considered the impact of the proposed changes on the employees and whether the employees had been adequately consulted throughout the process. Ultimately, the court determined that the employer had provided sufficient grounds for the application and that the proposed changes were reasonable and necessary. The court found that the existing agreement was no longer suitable due to the significant changes in the business environment and operational requirements.

The outcome of the case was that the Fair Work Commission granted the application for termination of the Redisand Pty Ltd Enterprise Agreement 2015. The new enterprise agreement, which incorporated the proposed changes, was approved and came into effect on the specified date. The court's decision recognised the need for flexibility and adaptability in enterprise agreements to accommodate changes in the business environment, while also ensuring that the rights and interests of employees were protected. The final orders included the termination of the existing agreement and the establishment of a new enterprise agreement that reflected the current needs of both the employer and the employees.

Redisand Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established