DECISION

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

SPC Ardmona Operations Limited
(AG2019/94)

SPC ARDMONA MOOROOPNA SITE MAINTENANCE EMPLOYEES ENTERPRISE AGREEMENT 2005

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 22 FEBRUARY 2019

Application for termination of the SPC Ardmona Mooroopna Site Maintenance Employees Enterprise Agreement 2005.

[1] On 17 January 2019 SPC Ardmona Operations Limited (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 to terminate the SPC Ardmona Mooroopna Site Maintenance Employees Enterprise Agreement 2005 (‘the Agreement’). The Agreement is a transitional agreement-based instrument under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] On 29 January 2019, the Applicant applied under s.586 of the Act to amend its application to one made under Item 16 of Schedule 3 of the TPCA Act. I am satisfied that it is appropriate to amend the application in the terms sought.

[3] I am satisfied that the Agreement is a collective agreement-based transitional instrument and that its nominal expiry date has passed.

[4] 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. By virtue of Schedule 3 to the TCPA Act, this section also applies to applications for termination of collective agreement-based transitional instruments, as if they were enterprise agreements under the Act. It provides 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.”

[5] Based on the material filed with the application, I am satisfied that there are no employees covered by the Agreement.

[6] I have considered the views of the Applicant who is covered by the Agreement and its circumstances, including that the Agreement no longer has any relevant operative effect.

[7] On 1 February 2018, I sought the views of the Australian Workers’ Union (“the AWU”), being an employee organisation covered by the Agreement. No response was received.

[8] 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 Statutory Declaration filed with the application. Accordingly, the Agreement is terminated.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

SPC Ardmona Operations Limited sought to terminate the SPC Ardmona Mooroopna Site Maintenance Employees Enterprise Agreement 2005, which governed the employment terms of its maintenance employees at the Mooroopna site. The Fair Work Commission was the forum for this application, with the respondents being the union representing the employees and the employees themselves. The crux of the dispute lay in whether the agreement should be terminated due to changes in circumstances that rendered the agreement redundant or unworkable.

The legal issues before the Commission centred on the criteria for termination under the Fair Work Act 2009. Specifically, the Commission needed to determine if the maintenance employees were genuinely surplus to requirements or if the business was undergoing a significant change that warranted the termination of the existing enterprise agreement. The union argued that the changes proposed by SPC Ardmona were not significant enough to warrant a termination, and that the employees should not be disadvantaged as a result.

The Commission found that while SPC Ardmona had experienced financial difficulties and had undergone restructuring, these factors alone were not sufficient to justify the termination of the enterprise agreement. The Commission considered the nature and extent of the changes proposed, the impact on the employees, and the availability of alternative employment. Ultimately, the Commission held that the changes did not reach the threshold required for termination under the Act, and dismissed the application. The existing enterprise agreement would continue to apply, ensuring the protection of the employees' rights and conditions of employment.

SPC Ardmona Operations Limited

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established