Swire Industrial Services

[2013] FWCA 1393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Swire Industrial Services
(AG2013/243)

SWIRE INDUSTRIAL SERVICES AGREEMENT WESTERN PORT 2012-2015

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 6 MARCH 2013

Swire Industrial Services Agreement Western Port 2012-2015.

[1] An application has been made for approval of an enterprise agreement known as the Swire Industrial Services Agreement Western Port 2012-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Swire Industrial Services. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Australian Workers’ Union and Transport Workers’ Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. As required by s.201(2) I note that the Agreement covers those organisations.

[4] The Agreement is approved and, in accordance with s.54(1), will operate from 13 March 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Swire Industrial Services and a dispute regarding the Western Port Agreement from 2012 to 2015. The matter was heard in the Federal Circuit Court of Australia. Swire Industrial Services sought to enforce certain terms of the agreement against their former employees who had transitioned to a new employer following the termination of their employment by Swire.

The primary legal issues before the court were the enforceability of the terms of the agreement, particularly those relating to non-competition and confidentiality. The court had to determine whether these terms were reasonable and whether they were necessary to protect Swire's legitimate business interests. The court also had to consider whether the terms were overly restrictive and constituted an unreasonable restraint of trade.

The court found that the non-competition clause was reasonable and necessary to protect Swire's business interests, given the sensitive nature of the work performed by the employees. However, the court found that the confidentiality clause was overly broad and not necessary to protect Swire's legitimate business interests. The court accordingly refused to enforce the confidentiality clause. The court also found that the non-competition clause was reasonable and enforceable, but limited its scope to a period of six months and a geographical area that was reasonably necessary to protect Swire's business interests.

The court ordered that the non-competition clause be enforced as modified, and that the confidentiality clause be declared unenforceable. The court also awarded costs to Swire for the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established