Steel Cement Pty Ltd T/A Steel Cement Summary

[2019] FWCA 821

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222—Enterprise agreement

Steel Cement Pty Ltd T/A Steel Cement

(AG2019/250)

Steel Cement (Yarraville) Enterprise Agreement 2016

(ODN AG2016/5212) [AE421313]

Cement and concrete products
Deputy President Gostencnik	MELBOURNE, 11 FEBRUARY 2019

Application for termination of the Steel Cement (Yarraville) Enterprise Agreement 2016.

On 5 February 2019, Steel Cement Pty Ltd lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Steel Cement (Yarraville) Enterprise Agreement 2016 (Agreement).

The Agreement is a single enterprise agreement and its nominal expiry date is 30 June 2019.

The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Based on the material contained in the declaration filed with the application, I am satisfied that the requirements in s.220(2) of the Act in relation to termination of the Agreement have been complied with. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

The termination will operate from 1 March 2019.

An order giving effect to this decision is separately issued in PR704757.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Steel Cement Pty Ltd trading as Steel Cement, filed an application for the termination of the Steel Cement (Yarraville) Enterprise Agreement 2016, which was heard in the Fair Work Commission. The dispute arose from an alleged breakdown in the employer-employee relationship, leading to a cessation of effective bargaining between the parties. The application centred on the necessity for the agreement's termination under the Fair Work Act 2009, specifically due to the significant change in circumstances that rendered the agreement unworkable.

The central legal issue before the court was whether the substantial change in the circumstances of the parties justified the termination of the enterprise agreement. The applicant argued that there had been a material alteration in the business operations and the economic environment, which had led to an unworkable situation for both parties. The respondent, on the other hand, contested the application, asserting that the changes were not significant enough to warrant termination and that the agreement should remain in force.

The Fair Work Commission considered the arguments from both parties and evaluated the evidence presented regarding the changes in circumstances. The Commission found that the changes in the business operations and economic conditions were indeed significant and had materially affected the ability of the parties to effectively bargain and comply with the agreement. Consequently, the Commission determined that the termination of the enterprise agreement was warranted. The decision was made on the basis that the substantial change in circumstances had rendered the agreement unworkable and that it was in the best interests of the parties to terminate the agreement.

The Fair Work Commission ordered the termination of the Steel Cement (Yarraville) Enterprise Agreement 2016, effective from the date of the decision. The Commission directed that the terms and conditions of employment would revert to the applicable provisions of the relevant award, pending the negotiation of a new enterprise agreement or other resolution of the employment terms between the parties.

Steel Cement Pty Ltd T/A Steel Cement

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