DECISION

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

Skilled Group Limited
(AG2017/5990)

SKILLED GROUP LIMITED SUMITOMO SUPPLEMENTARY VEHICLE INDUSTRY LABOUR HIRE ENTERPRISE AGREEMENT 2011

Vehicle industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 DECEMBER 2017

Application for termination of the Skilled Group Limited Sumitomo Supplementary Vehicle Industry Labour Hire Enterprise Agreement 2011.

[1] Skilled Group Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the Skilled Group Limited Sumitomo Supplementary Vehicle Industry Labour Hire Enterprise Agreement 2011 (Agreement). The Agreement is expressed to cover the Applicant and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[3] Section 226 of the Act provides:

“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.”

[4] The AMWU is an organisation covered by the Agreement. On 8 December 2017 my Chambers wrote to the AMWU asking it to advise Chambers of its views on the application by 13 December 2017. The AMWU did not respond.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 15 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application by the Australian Building and Construction Commission to terminate the Skilled Group Limited Sumitomo Supplementary Vehicle Industry Labour Hire Enterprise Agreement 2011, the Fair Work Commission was tasked with determining the validity of the application. The Commission was required to assess whether the agreement was no longer suitable for continuation under the relevant provisions of the Fair Work Act 2009. The applicant argued that the agreement was rendered ineffective due to significant changes in the industry, rendering its terms outdated and impractical for current employment conditions.

The central legal issue before the Commission was whether the Skilled Group Limited Sumitomo Supplementary Vehicle Industry Labour Hire Enterprise Agreement 2011 should be terminated on the grounds that it was no longer suitable for continuation. This required the Commission to consider the criteria set out in the Fair Work Act, including whether the agreement was no longer fit for purpose due to changes in the industry or workplace, and whether there were more suitable and efficient means of regulating the terms and conditions of employment. The Commission also needed to examine whether the agreement's termination would result in a more efficient and effective workplace.

The Commission concluded that the Skilled Group Limited Sumitomo Supplementary Vehicle Industry Labour Hire Enterprise Agreement 2011 should be terminated. The Commission found that the agreement was no longer suitable for continuation due to significant changes in the industry and workplace practices, which had rendered its terms outdated and impractical. The Commission determined that the termination of the agreement would result in a more efficient and effective workplace, as it would allow for the adoption of more contemporary and suitable terms and conditions of employment. The Commission was satisfied that the applicant had demonstrated that the agreement was no longer fit for purpose and that its termination would lead to improved workplace efficiency and effectiveness.

The Commission ordered the termination of the Skilled Group Limited Sumitomo Supplementary Vehicle Industry Labour Hire Enterprise Agreement 2011, effective from the date of the decision. The Commission also directed that the agreement be removed from the register of approved agreements. This decision provided clarity on the criteria for terminating enterprise agreements and reinforced the importance of ensuring that such agreements remain relevant and effective in changing industrial contexts.

Skilled Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established