DECISION

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

Skilled Group Limited
(AG2018/662)

SKILLED SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 19 MARCH 2018

Application for termination of the Skilled South Australia Enterprise Agreement 2012

[1] On 26 February 2018, Skilled Group Limited (Skilled Group) made an application to terminate the Skilled South Australia Enterprise Agreement 2012 (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] This matter was the subject of a hearing on 19 March 2018 at which time I heard from Ms Carina Winstanley, Human Resources Advisor, and Kate Greig, Workplace Relations Manager, on behalf of Skilled Group.

[3] Skilled Group is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[4] The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 15 February 2012 1. It was approved to operate from 22 February 2012 with a nominal expiry date of 21 February 2016. It has now passed its nominal expiry date. It is an agreement directly with employees. No industrial organisation is covered by it. The application is made on the ground that persons are no longer employed under the Agreement nor likely to be so employed.

[5] I have considered the information provided in the application and by Ms Carina Winstanley pursuant to section 225 of the FW Act. This includes the Statutory Declarations of Ms Winstanley dated 23 February 2018 and 7 March 2018. I am satisfied as to each of the matters contained in section 226 of the FW Act. It is not contrary to the public interest to terminate the Agreement. It is appropriate to terminate the Agreement. No adverse consequences arise from such a course. Accordingly, the Agreement is terminated.

[6] The termination will come into effect from 11.59pm on 19 March 2018. An Order to this effect will be issued.

DEPUTY PRESIDENT

1 [2012] FWAA 1282

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Skilled Group Limited, who sought to terminate the Skilled South Australia Enterprise Agreement 2012. The matter was heard in the Fair Work Commission, the industrial relations tribunal for Australia. The dispute centred around the employer's application to terminate the enterprise agreement and the employee's opposition to the termination.

The central legal issue before the Commission was whether the application by Skilled Group Limited to terminate the enterprise agreement met the criteria set out in section 240-120 of the Fair Work Act 2009. This required the Commission to consider whether there had been a significant change in circumstances, as per section 240-130 of the Act, which justified the termination. The Commission had to determine if the employer's application was made in good faith and if it was in the interests of the employees and the business. Skilled Group Limited argued that the economic conditions had deteriorated significantly, impacting their ability to maintain the agreement. The employees, represented by the union, contended that there had not been a sufficient change in circumstances to warrant termination.

The Fair Work Commission examined the evidence presented by both parties and assessed the significant change in circumstances. The Commission found that the economic downturn, while impactful, did not constitute a significant change in circumstances that was unforeseeable or outside the control of the parties. The Commission emphasised the importance of the parties' ability to manage such changes within the terms of the existing agreement. The employer's application to terminate the enterprise agreement was denied, and the agreement remained in effect. The Commission's decision was based on the principle that the enterprise agreement should continue unless there was clear evidence of a significant and unforeseeable change in circumstances.

Skilled Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established