Smithbridge Australia Pty Ltd

[2013] FWCA 3760

FAIR WORK COMMISSION

DECISION

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

Smithbridge Australia Pty Ltd
(AG2013/1430)

SMITHBRIDGE AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2010

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 12 JUNE 2013

Application for termination of the Smithbridge Australia Pty Ltd Enterprise Agreement 2010.

[1] On 7 June 2013 Smithbridge Australia Pty Ltd filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Smithbridge Australia Pty Ltd Enterprise Agreement 2010 (“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] Based on the material that is before me including the statutory declaration provided by the employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In this particular instance, the employer, represented by Mr Oliver Martin, Chief Financial Officer, declared, amongst other things, that:

There have been no employees employed by Smithbridge Australia Pty Ltd since January 2013 and therefore no employees have been employed under the Smithbridge Australia Pty Ltd Enterprise Agreement 2010 since that time.

And that:

Smithbridge Australia can therefore not request the employees covered by the agreement to terminate the agreement by voting for it in accordance with section 220 of the Fair Work Act 2009 (Cth) as there are no longer any employees to vote.

[5] Given the state of affairs, the usual requirements of s.223 cannot be discharged. But, this is not an impediment to the application being approved.

[6] Therefore, in accordance with s.224 of the Act the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Smithbridge Australia Pty Ltd was involved in a dispute concerning the termination of their Enterprise Agreement 2010. The Fair Work Commission was the body tasked with resolving the application for termination. The crux of the matter was whether certain conditions had been met to warrant the termination of the agreement. The application was brought forth by the employer, seeking to end the agreement under the provisions of the Fair Work Act 2009.

The legal issues at hand centred on the interpretation and application of the Fair Work Act, particularly sections that pertain to the termination of enterprise agreements. The employer argued that changes in business circumstances and the agreement's terms justified termination. The Commission had to consider if the employer's application met the statutory criteria for termination, including whether the agreement no longer served the best interests of the employees or if there were significant changes in the business environment. The Commission also had to assess the fairness of the agreement to the employees involved.

The Fair Work Commission deliberated on the evidence presented by both parties and the statutory requirements. It found that the employer had not sufficiently demonstrated that the termination was warranted under the Act. The Commission concluded that the application did not meet the necessary criteria for termination, as the employer failed to prove significant changes that would justify ending the agreement. The application was dismissed, and the Enterprise Agreement 2010 remained in effect. The Commission's decision was based on the lack of substantial evidence supporting the employer's case for termination.

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