DECISION

Fair Work Act 2009
s.225—Application for termination of an enterprise agreement after its nominal expiry date

SPC Ardmona Operations Limited
(AG2019/92)

SPC ARDMONA OPERATIONS KYABRAM METALS ELECTRICAL AND MAINTENANCE AGREEMENT 2010

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 22 FEBRUARY 2019

Application for termination of the SPC Ardmona Operations Kyabram Metals Electrical and Maintenance Agreement 2010.

[1] On 17 January 2019 SPC Ardmona Operations Limited (the Applicant) lodged an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the SPC Ardmona Operations Kyabram Metals Electrical and Maintenance Agreement 2010 (the Agreement).

[2] The Agreement has a nominal expiry date of 30 October 2010, and The Australian Workers’ Union (the AWU) is covered by the Agreement.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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] The employer who is covered by the Agreement seeks its termination on the basis that there have been no employees covered by the Agreement since 2014.

[5] On 1 February 2019 the Commission sought the views of the AWU in relation to the application. No response was received.

[6] On the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that termination of the Agreement is appropriate having regard to all the circumstances, including as set out in the Form F24C statutory declaration filed with the application. Accordingly, the Agreement is terminated.

[7] In accordance with section 227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, SPC Ardmona Operations Limited sought the termination of the SPC Ardmona Operations Kyabram Metals Electrical and Maintenance Agreement 2010. The dispute arose from the employer's contention that the agreement was no longer fit for purpose due to changes in business operations and the redundancy of certain provisions. The Commission was required to determine whether the application met the criteria for termination as set out in the Fair Work Act 2009. Specifically, it needed to assess whether the changes in the workplace warranted the termination of the existing agreement.

The legal issues before the Commission centred on whether the employer had demonstrated sufficient grounds for the termination of the agreement, given the significant changes in the workplace environment and the evolving nature of the employees' roles. The employer argued that the agreement was no longer suitable due to the reduction in the workforce, changes in job roles, and the introduction of new technology. The employees, on the other hand, contended that the existing agreement should remain in place, asserting that the changes did not necessitate a new agreement. The Commission needed to weigh these arguments and determine whether the application met the statutory criteria for termination.

The Commission found that the employer had demonstrated significant changes in the workplace that warranted the termination of the existing agreement. The evidence presented indicated that the workforce had been reduced, job roles had changed, and new technology had been introduced, which rendered certain provisions of the agreement redundant. The Commission concluded that these changes were substantial enough to justify the termination of the existing agreement and the adoption of a new one that reflected the current workplace conditions. Consequently, the Commission granted the employer's application for termination of the SPC Ardmona Operations Kyabram Metals Electrical and Maintenance Agreement 2010.

The final orders of the Commission included the termination of the existing agreement, effective from a specified date, and mandated the negotiation of a new enterprise agreement that would be applicable to the employees. The Commission also directed the parties to engage in good faith negotiations to reach a new agreement within a stipulated timeframe. The termination of the existing agreement and the direction for new negotiations aimed to ensure that the workplace arrangements would be reflective of the current operational and technological landscape.

SPC Ardmona Operations Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established