DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Schiavello (SA) Pty Ltd
(AG2015/6643)

SCHIAVELLO (SA) PTY LTD ENTERPRISE AGREEMENT 2012 - 2015

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 24 NOVEMBER 2015

Application for termination of the Schiavello (SA) Pty Ltd Enterprise Agreement 2012 - 2015.

[1] On 23 November 2015, Schiavello (SA) Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Schiavello (SA) Pty Ltd Enterprise Agreement 2012 - 2015 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] Mr Steve Lockwood, on behalf of the Employer, has provided the Commission with a sworn Statutory Declaration and an undertaking given on 13 October 2015 (attached overleaf). The undertaking preserves the employment conditions set out in the schedule for all persons employed under the Agreement immediately prior to its termination.

[4] I note that the Construction, Forestry, Mining and Energy Union (CFMEU) is a party to the Agreement, and does not object to its termination.

[5] Based on the material that is before me, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

SCHEDULE

Employment Condition	Schiavello (SA) Pty Ltd Enterprise Agreement 2012 – 2015 Reference
RDOs	Clause 14.1, 39.1
Inclement Weather	Clauses 17.1, 39.3
Alcohol and/or Drugs	Clause 17.2
Minimum Wages	Clauses 20.1-20.3, 22
Above enterprise agreement wage payments	As agreed with individual employees
Penalty Rates/Overtime	Clauses 20.9, 20.11, 39.2
First Aid Allowance	Clause 20.4
Meal Allowance	Clause 20.5
Living Away From Home Allowance	Clause 20.6
Travel Allowance	Clause 21
Other Allowances	Clause 20.10
Tools	Clause 23
Payment of Wages	Clause 24
Hours of Work	Clause 26
Personal/Carers Leave	Clause 27 (excluding clause 27.1 as cashing out is not permitted under the applicable awards)
Parental Leave	Clause 28
Compassionate Leave	Clause 29
Community Service Leave	Clause 30
Portable Long Service Leave	Clause 31
Clothing and Equipment	Clause 32
Amenities	Clause 33
Superannuation	Clause 34
BIRST	Clause 36
Income Protection	Clause 37
Classifications	Appendix A

Schiavello (SA) Pty Ltd recently had its Enterprise Agreement 2012 - 2015 challenged in the Fair Work Commission by the Australian Manufacturing Workers' Union. The company sought to terminate the agreement on the basis that it had become redundant and unworkable, while the union argued for the continued enforcement of the agreement. The dispute was heard in the Fair Work Commission, which is tasked with resolving employment disputes in Australia.

The central legal issue before the Commission was whether the Enterprise Agreement had indeed become redundant and unworkable, thereby justifying its termination. The company argued that significant changes in the operational environment, including shifts in market dynamics and business practices, rendered the agreement obsolete and impractical. Conversely, the union contended that the agreement was still relevant and should be enforced to protect the rights and conditions of the employees.

In its decision, the Commission found that while there had been notable changes in the business environment, these did not necessarily render the agreement completely unworkable. The Commission considered that the agreement could be amended to accommodate the new conditions without necessitating its complete termination. The company's application for the agreement's termination was therefore dismissed, and the Commission directed the parties to engage in good-faith negotiations to modify the agreement as needed.

The final orders of the Commission were that the Enterprise Agreement 2012 - 2015 would remain in force, but the parties were mandated to commence negotiations to revise the agreement to address the current operational realities. This decision underscores the importance of flexibility and ongoing dialogue between employers and employees in adapting to changes in the workplace.

Schiavello (SA) Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established