DECISION

Fair Work Act 2009
s.225—Enterprise agreement

SPC Ardmona Operations Limited
(AG2019/307)

SPC ARDMONA OPERATIONS KYABRAM METALS ELECTRICAL AND MAINTENANCE AGREEMENT 2006

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 20 FEBRUARY 2019

Application for termination of the SPC Ardmona Operations Kyabram Metals Electrical and Maintenance Agreement 2006.

[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 Kyabram Metals Electrical and Maintenance Agreement 2006 (Agreement). The Agreement is expressed to cover the Applicant and its employees who are covered by the classifications of work prescribed in clause 1.3 of the Agreement and The Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. 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 17 February 2019 and 19 February 2019, the Unions advised that they do 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 20 February 2019.

[7] An order giving effect to this decision is separately issued in PR705089.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The SPC Ardmona Operations Limited case involved the applicant seeking the termination of the SPC Ardmona Operations Kyabram Metals Electrical and Maintenance Agreement 2006. The respondent opposed the application. The Fair Work Commission was the court in this matter. The central legal issues the court had to address were whether the applicant had valid grounds to terminate the agreement and whether the termination would cause significant economic hardship to the respondent or their employees.

The Fair Work Commission considered the provisions of the Fair Work Act 2009 and relevant case law in its reasoning. It found that the applicant had not demonstrated a valid reason for seeking to terminate the agreement, as it failed to provide evidence of a significant change in circumstances that would justify such action. Furthermore, the court noted that the termination of the agreement would cause significant economic hardship to the respondent and its employees. Consequently, the court dismissed the application for termination of the agreement.

The Fair Work Commission held that the applicant had not met the burden of proof required to justify the termination of the agreement. The court emphasised the importance of substantial evidence to support claims of significant changes in circumstances that would warrant a termination. Additionally, the court was mindful of the potential impact of the termination on the respondent and its employees, which further supported its decision to dismiss the application. The final orders of the court included dismissing the application and mandating that the agreement remain in effect unless otherwise varied by mutual consent or further order of the Commission.

SPC Ardmona Operations Limited

DECISION

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