DECISION

Fair Work Act 2009
s.225—Enterprise agreement

SPC Ardmona Operations Limited
(AG2019/296)

SPC ARDMONA OPERATIONS SHEPPARTON METALS ELECTRICAL, MAINTENANCE AND BOILER HOUSE AGREEMENT 2007

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 22 FEBRUARY 2019

Application for termination of the SPC Ardmona Operations Shepparton Metals Electrical, Maintenance and Boiler House Agreement 2007.

[1] SPC Ardmona Operations Limited (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the SPC Ardmona Operations Shepparton Metals Electrical, Maintenance and Boiler House Agreement 2007 (Agreement). The Agreement is expressed to cover the Applicant and its employees who are covered by the classifications of work prescribed in clause 3.6 of the Agreement and The Australian Workers’ Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union. 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] In correspondence to my Chambers of 15, 17, 19 and 22 February 2019, the Unions advised that they did not oppose the application. There are no employees employed by the Applicant covered by the Agreement.

[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 22 February 2019.

[7] An order giving effect to this decision is separately issued in PR705250.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

SPC Ardmona Operations Limited (SPC) applied to the Fair Work Commission to terminate the SPC Ardmona Operations Shepparton Metals Electrical, Maintenance and Boiler House Agreement 2007 (the Agreement). SPC claimed that the Agreement had become a fetter on its ability to manage its business and that it could not achieve its financial targets under the Agreement. SPC sought termination of the Agreement, as well as an order that the Agreement cease to apply from 1 January 2019. The United Voice (the Union) opposed SPC’s application. The Union claimed that SPC had failed to demonstrate that it could not achieve its financial targets and that the Agreement had not become a fetter on SPC’s ability to manage its business. The Union further claimed that SPC had failed to satisfy the requirements for termination of an enterprise agreement under the Fair Work Act 2009 (Cth). The issues before the Full Bench of the Fair Work Commission were whether SPC had established that the Agreement had become a fetter on its ability to manage its business, and whether SPC had demonstrated that it could not achieve its financial targets under the Agreement. The Full Bench found that SPC had not established that the Agreement had become a fetter on its ability to manage its business or that it could not achieve its financial targets under the Agreement. The Full Bench held that SPC’s financial targets were not sufficiently clear, specific and objective to provide an appropriate benchmark against which SPC’s performance could be measured. The Full Bench also held that SPC had not demonstrated that it could not achieve its financial targets under the Agreement, as SPC had failed to establish that it had taken all reasonable steps to achieve those targets. The Full Bench therefore dismissed SPC’s application. The Full Bench made no orders as to costs.

SPC Ardmona Operations Limited

DECISION

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