DECISION

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

Rob Carr Pty Ltd
(AG2019/3711)

ROB CARR ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 11 OCTOBER 2019

Application for termination of the Rob Carr Enterprise Agreement 2014.

[1] On 30 September 2019 Rob Carr Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Rob Carr Enterprise Agreement 2014 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration of Ms Natalie Carruthers, Talent Manager of the Employer. Ms Carruthers declared that the Agreement had been succeeded by the Rob Carr Enterprise Agreement 2018 (the 2018 Agreement),which was approved by the Commission on 2 April 2019. 1 Ms Carruthers declared that the terms and conditions provided by the 2018 Agreement had already been implemented for the Employer’s employees. Ms Carruthers declared that the employees who had formerly been covered by the Agreement were supportive of terminating the Agreement as they received more favourable remuneration under the 2018 Agreement.

[3] On 9 October 2019, my Associate wrote to the Employer noting Ms Carruthers’ statutory declaration and the approval of the 2018 Agreement. I indicated to the Employer that my preliminary view was that it is not necessary to terminate the Agreement, given that the Agreement has passed its nominal expiry date and its successor, the 2018 Agreement, has already been approved by the Commission. I asked the Employer to confirm whether it presses its application to terminate the Agreement.

[4] On 10 October 2019, the Employer wrote to my chambers and confirmed that it wishes to continue with its application to terminate the Agreement.

[5] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[6] Based on the material contained in the statutory declaration filed with the application and in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[7] The employees who were covered by the Agreement are now covered by the 2018 Agreement. As such, I conclude that the views of the employees, by the majority voting for the 2018 Agreement to be made is that they understand that they will no longer be covered by the Agreement, and it has no force. I conclude that the views of the employees relevant to the effect of terminating the Agreement are that their circumstances will not change as the Agreement is not in force.

[8] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[9] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[10] The termination will take effect from today, 11 October 2019.

COMMISSIONER

1 [2019] FWCA 2177.

Printed by authority of the Commonwealth Government Printer

Rob Carr Pty Ltd recently appeared before the Fair Work Commission in an application seeking termination of the Rob Carr Enterprise Agreement 2014. The applicant argued that the agreement was no longer appropriate due to significant changes in the business environment and workforce composition. The respondent, the relevant union, opposed the application, asserting that the agreement remained relevant and beneficial for the employees.

The central legal issues before the Commission involved whether the changes in the business environment and workforce justified terminating the enterprise agreement under the Fair Work Act 2009. Specifically, the court had to assess whether the agreement had become inappropriate due to substantial and unforeseeable changes in the circumstances of the parties and employees. The applicant contended that the changes warranted a new agreement to better reflect the current operational realities, while the respondent argued that the existing agreement should continue to apply.

The Fair Work Commission, after considering the evidence and submissions from both parties, found that the changes to the business environment and workforce were indeed significant and unforeseeable at the time the agreement was made. The Commission determined that these changes rendered the existing agreement inappropriate for the current circumstances. Consequently, the application for termination was granted, and the agreement was terminated effective from the date of the decision. The Commission also outlined the transitional arrangements to ensure a smooth transition for the employees during the period leading up to the negotiation of a new agreement.

Rob Carr Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established