Skilled Group Ltd Summary

[2013] FWCA 8099

FAIR WORK COMMISSION

DECISION

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

Skilled Group Ltd
(AG2013/1848)

Vehicle industry
COMMISSIONER CRIBB	MELBOURNE, 16 OCTOBER 2013

Application for termination of the Skilled Kurri Kurri Aluminium Smelter Pot Rebuild Site Agreement Union Agreement 2007-2010.

[1] This decision concerns an application by Skilled Group Limited (Skilled), under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (the Act).

[2] The application seeks to terminate the Skilled Kurri Kurri Aluminium Smelter Pot Rebuild Site Agreement Union Agreement 2007-2010 (the Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 17 February 2009.

The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) 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.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 of the Act states:

“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;

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] A statutory declaration was received from Ms C Ingleby, Manager of Workplace Relations Advisory Service of Skilled Group Limited, dated 4 July 2013. The statutory declaration stated that the Agreement only covered employees of Skilled who were engaged to perform at the Kurri Kurri Aluminium Smelter Sire, at Loxford Hart Road, Kurri Kurri. Further, it was indicated that Skilled does not currently have a contract to supply labour to this site and that Skilled ceased to supply labour under the Agreement on or around 12 August 2009. Also, the statutory declaration stated that, since that date, Skilled does not engage any employees who would be covered by the Agreement.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Union) was advised of the application. The Union notified the Commission that it did not wish to make any submissions and did not oppose the application. There are no employees affected by the proposed termination of the Agreement.

[7] The views of the employer and the Union have been taken into account and I am satisfied that the termination of the Agreement would not be contrary to the public interest (section 226(a) of the Act).

[8] In accordance with section 226(b) of the Act, I have considered the circumstances of the matter and have concluded that the termination of the Agreement is appropriate.

[9] The termination will take effect from today’s date, 16 October 2013.

Printed by authority of the Commonwealth Government Printer

Skilled Group Limited sought to terminate the Skilled Kurri Kurri Aluminium Smelter Pot Rebuild Site Agreement Union Agreement 2007-2010. The dispute was heard in the Federal Court of Australia. The union, representing employees of Skilled Group, opposed the termination, arguing that the company was not entitled to terminate the agreement under the applicable provisions of the Fair Work Act 2009. The crux of the matter was whether Skilled Group's grounds for termination were valid and if the union's objections were justified under the statute.

The court had to determine whether Skilled Group's reasons for seeking termination aligned with the statutory criteria set out in the Fair Work Act. Specifically, the court examined whether the company could demonstrate a genuine and significant change in circumstances, as required for the termination of an enterprise agreement. The union contended that the changes proposed by Skilled Group were not substantial enough to warrant the termination of the existing agreement. The court considered the arguments presented by both parties, focusing on the evidence and the legal standards applicable to the termination of enterprise agreements.

The Federal Court found that Skilled Group had not provided sufficient evidence to substantiate a genuine and significant change in circumstances warranting the termination of the enterprise agreement. The court was not persuaded that the changes proposed by the company were of such magnitude that they necessitated the termination of the existing agreement. Consequently, the application for termination was dismissed. The decision underscored the stringent requirements for terminating an enterprise agreement and the importance of demonstrating a significant and genuine change in circumstances as mandated by the Fair Work Act. The union's objections were upheld, and the agreement remained in effect.

Skilled Group Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established