DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Terrazzo (Aust) Marble Pty Ltd
(AG2020/2210)

TERRAZZO (AUST) MARBLE PTY LIMITED ENTERPRISE AGREEMENT 2014-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 21 AUGUST 2020

Application for termination of the Terrazzo (Aust) Marble Enterprise Agreement 2014-2018.

[1] Terazzo (Aust) Marble Pty Ltd applied for the termination of the Terazzo (Aust) Marble Pty Limited Enterprise Agreement 2014 – 2018 (the Agreement), under s.225 of the Fair Work Act 2009 (the Act).

[2] The application pursuant to s.225 of the Act states:

“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] The applicant is an employer covered by the Agreement and thus has standing to make the termination applications. The Agreement has passed its nominal expiry date of 10 July 2018.

[4] Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made.

“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] The applicant’s statutory declaration by Mr Mark Donati states that there are employees covered by this agreement. The views of the employees were sought and it is clear that the employees consent to the termination of the agreement.

[6] The agreement does not cover any employee organisations.

[7] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[8] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Terrazzo (Aust) Marble Pty Ltd recently appeared before the Fair Work Commission in an application seeking termination of the Terrazzo (Aust) Marble Enterprise Agreement 2014-2018. The employer, Terrazzo (Aust) Marble Pty Ltd, sought to terminate the enterprise agreement, citing changes in business circumstances as the primary reason. The application was opposed by the union, which argued that the termination was unjust and not warranted under the Fair Work Act 2009.

The legal issues before the Commission involved whether the employer had demonstrated sufficient grounds for terminating the enterprise agreement and whether the termination would be just and equitable. The employer had to establish that there had been a significant change in business circumstances that rendered the agreement no longer suitable and that the agreement could not be modified to address these changes. The union argued that the employer had not met the threshold for termination and that any changes could be addressed through negotiation and modification of the agreement.

The Commission considered the evidence presented by both parties and examined the terms of the enterprise agreement and the applicable provisions of the Fair Work Act. It found that the employer had not demonstrated a significant change in business circumstances that warranted termination of the agreement. The Commission noted that the employer had not explored all possible avenues for modifying the agreement through negotiation and that the changes cited could be addressed through amendments rather than termination. The Commission concluded that the application for termination was not justified and dismissed the employer's application.

The Fair Work Commission ordered that the Terrazzo (Aust) Marble Enterprise Agreement 2014-2018 remain in force and effect, and that the employer and union continue to engage in good-faith negotiations to address any issues arising from the agreement. The employer was also directed to pay the union's costs associated with the application. This decision underscores the importance of exploring all available options for modifying an enterprise agreement before seeking termination and highlights the need for employers to demonstrate a significant change in business circumstances to justify such a move.

Terrazzo (Aust) Marble Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established