DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Skilled Group Limited
(AG2016/8049)

SKILLED GROUP LTD WESTERNPORT UNION COLLECTIVE AGREEMENT 2007-2009

Industries not otherwise assigned
COMMISSIONER WILLIAMS	PERTH, 27 JANUARY 2017

Application for termination of the SKILLED Group Ltd Westernport Union Collective Agreement 2007-2009.

[1] Skilled Group Limited (the Applicant) has applied to terminate the SKILLED Group Ltd Westernport Union Collective Agreement 2007-2009 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 31 March 2009.

[4] The relevant provisions of the Act are as follows:

“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;

(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] Ms Jenna Cuthbertson the Workplace Relations Manager of the Applicant has advised the Commission that the Agreement does not cover any employee and there are no circumstances where any employee would be covered by the Agreement in the future.

[6] The Australian Workers’ Union (AWU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) were each invited to provide their view on the application. The AWU advised it does not oppose the application. The AMWU was provided with additional time to consult with members it understood were covered by the Agreement but subsequently have not sought to make a submission.

[7] On the basis of the information provided by the Applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[8] Accordingly, the SKILLED Group Ltd Westernport Union Collective Agreement 2007-2009 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was an application by Skilled Group Limited to terminate the SKILLED Group Ltd Westernport Union Collective Agreement 2007-2009. The union representing employees of Skilled Group Limited contested the application, asserting that the reasons provided were insufficient for termination and that the process was not conducted fairly. The commission needed to determine whether the application met the criteria for termination under the Fair Work Act 2009 and whether the process adhered to the principles of procedural fairness.

The legal issues revolved around whether the employer had provided valid reasons for termination as outlined in section 237 of the Fair Work Act and whether the application process was conducted in a manner that complied with procedural fairness. The union argued that the employer had not provided sufficient evidence to justify termination, and that the process was flawed as it failed to provide adequate opportunity for the union to respond to the application. The commission had to assess the evidence presented by both parties and determine if the employer's application was substantiated and procedurally fair.

After reviewing the submissions and evidence, the Fair Work Commission found that the employer had not met the criteria for termination as required by section 237 of the Fair Work Act. The commission concluded that the employer failed to provide sufficient evidence to justify the termination of the collective agreement. Furthermore, the commission determined that the process was not procedurally fair, as the union was not given an adequate opportunity to respond to the application. Consequently, the application for termination was dismissed.

The final order of the commission was that the application by Skilled Group Limited to terminate the SKILLED Group Ltd Westernport Union Collective Agreement 2007-2009 was dismissed. The commission also noted that any future applications for termination must be supported by robust evidence and conducted in a manner that ensures procedural fairness.

Skilled Group Limited

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established