The Australian Workers’ Union - [2021] FWCA 6651

[2021] FWCA 6651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Australian Workers’ Union
(AG2019/4859)

D&D TRAFFIC MANAGEMENT & OTHER WORK - ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 26 NOVEMBER 2021

Application for termination of the D & D Traffic Management & Other Work - Enterprise Agreement 2015

[1] On 13 December 2019 The Australian Workers’ Union (the Applicant) lodged an application (the Application) with the Fair Work Commission (the Commission) to terminate the D & D Traffic Management & Other Work – Enterprise Agreement 2015 (the Agreement) after its nominal expiry date on 30 June 2019, in accordance with section 225 of the Fair Work Act 2009 (the Act). D&D Traffic Management Pty Ltd (the Respondent) opposed the Application.

Background

[2] This matter has a protracted and complex procedural history that is detailed in my earlier decision in [[2021] FWC 6044] regarding an application made by the Respondent to stay these proceedings.

[3] In summary, the application to terminate the Agreement was allocated to my chambers on 16 December 2019. Following allocation, a number of conferences were convened by the Commission to facilitate negotiation of a new Agreement. A new Agreement was made with the employees, the D & D Traffic Management & Other Workers Agreement 2020 (the 2020 Agreement) on 17 November 2020. The current proceedings were adjourned pending the outcome of the approval proceedings for the 2020 Agreement.

[4] The 2020 Agreement was not approved by the Commission pursuant to the decisions of Deputy President Cross on 24 February and 10 March 2021. The Respondent appealed the decision refusing approval of the 2020 Agreement, however, leave to appeal was refused on 16 July 2021. As a result, I convened Conferences on 6 August and 20 August 2021, with directions issued on 20 August for a hearing of the Application on 15 October 2021.

[5] On 27 September 2021 the Respondent advised the Commission that it had appealed the earlier decisions of the Commission to the Federal Court of Australia and sought for the Commission to “stay” the hearing of this application.

[6] Both the Applicant and the Respondent made submissions regarding the Respondent’s application to stay proceedings. On 5 October 2021, I denied an application by the Respondent to stay the current proceeding.

[7] In accordance with Amended Directions issued on 30 September 2021, the parties filed submissions as outlined below and the matter proceeded to a hearing on 15 October 2021.

[8] Mr Alistair Sage, Senior Legal Officer for the AWU, appeared for the Applicant. Mr Daniel Murray, Principal Advisor for Australian Industry Group, appeared for the Respondent.

Applicant’s submissions

[9] The Applicant’s position is that the statutory criteria for termination are met and that the Commission must terminate the Agreement.

[10] The Applicant cited the Full Bench decision in Re AWX 1 as setting out the statutory test under section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWCA 6651
Decision Date: 26 NOVEMBER 2021

CaseChat Overview and Summary

The Australian Workers’ Union sought the termination of the D & D Traffic Management & Other Work - Enterprise Agreement 2015. The matter was heard in the Fair Work Commission, with the Union arguing that the enterprise agreement had become unworkable due to changes in the workplace environment and the needs of its members. The employer, D & D Traffic Management, opposed the termination, maintaining that the agreement was still effective and beneficial for both parties.

The primary legal issue before the Commission was whether the agreement had indeed become unworkable, as defined under section 241 of the Fair Work Act 2009. The Union argued that significant changes in the operational environment, such as the introduction of new technologies and the restructuring of work roles, had rendered the agreement impractical and detrimental to the members' interests. The employer contended that the changes were minor and did not justify the termination of the agreement.

In its decision, the Commission considered various factors, including the nature of the changes and their impact on the employees. It was noted that the changes had indeed affected the working conditions and the roles of the employees, making certain provisions of the agreement difficult to enforce. The Commission concluded that the agreement had become unworkable and ordered its termination, effective from a specified date. The decision recognised the need to adapt to changing work environments while ensuring that employees' rights and interests are protected.

The final orders included the termination of the D & D Traffic Management & Other Work - Enterprise Agreement 2015, with specific provisions regarding the transition period for affected employees. The Commission also directed the parties to engage in good-faith negotiations to establish a new agreement that would be suitable for the current and future work environment. This decision underscores the importance of flexibility in enterprise agreements to accommodate changes in the workplace while safeguarding the rights of employees.

Orders