DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Laminex Group Pty Ltd T/A Laminex Group
(AG2021/217)

LAMINEX CAIRNS BRANCH AGREEMENT 2016-2019

Timber and paper products industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 16 FEBRUARY 2021

Application for termination of the Laminex Cairns Branch Agreement 2016-2019.

[1] Laminex Group Pty Ltd (the Applicant) has applied, pursuant to section 225 of the Fair Work Act 2009 (the Act), to terminate the Laminex Cairns Branch Agreement 2016-2019 (the Agreement). The Agreement has passed its nominal expiry date of 23 November 2019. The Applicant is the employer covered by the Agreement.

[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] The material before the Commission includes the originating application, an accompanying statutory declaration filed by the employer in support of the application, and a further statutory declaration provided by the employer on 12 February 2020.

[5] The further statutory declaration provided by the employer on 12 February 2020 provides:

“1. The Laminex Cairns Branch Agreement 2016-2019 (Old Agreement), which is sought to be terminated, covered all the following Laminex employees:

• Storeperson/Driver - Grade 1-3;

• Warehouse Coordinator Grade 4;

• Sales Clerk Grade 1-3 and

• Sales Clerk Co-ordinator Grade 4,

located at 155-159 English Street, Cairns, Manunda, QLD 4870.

2. As a result of a major business re-structure, on 13 May 2019, Laminex closed the site located at 155-159 English Street, Cairns, Manunda, QLD 4870, and shifted its Cairns operations and employees to a new site based at 25 Ponzo St, Woree QLD 4868. This new site is referred to as the Laminex Cairns cross dock.

3. Subsequently, the last remaining employee, employed under the Sales Clerk classification structure under the Laminex Cairns Branch Agreement 2016-2019 (Old Agreement), exited the company via redundancy on Thursday, 28 May 2020.

4. Currently, there are no employees covered by the Laminex Cairns Branch Agreement 2016-2019 (Old Agreement) under the Sales Clerk 1-3 or Sales Clerk Co-ordinator Grade 4 classification structure, and there is no intention by the company to engage employees under this instrument in the foreseeable future.

5. Additionally, the remaining Storeperson/Driver Laminex employees, which moved to the new Laminex Cairns cross dock location, based at 25 Ponzo St, Woree QLD 4868, are now covered by the newly formed Laminex North QLD & NT Regional Distribution Agreement 2020 (AG2020/3526) (New Agreement), which came into effect on 8 December 2020.”

[6] Accordingly, there are no employees covered by the Agreement. The Agreement does not cover any employee organisation.

[7] I am satisfied that each of the requirements of section 226 of the Act have been met. As a result, I must approve the termination of the Agreement.

[8] The Agreement is terminated and, pursuant to section 227 of the Act, the termination will come into effect from 16 February 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Laminex Group Pty Ltd, trading as Laminex Group, filed an application seeking the termination of the Laminex Cairns Branch Agreement 2016-2019. This case was heard by the Fair Work Commission, specifically a delegate of the President, who was tasked with resolving the dispute between the employer and the employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The primary issue was whether the application met the criteria for terminating the enterprise agreement under section 239 of the Fair Work Act 2009. The legal questions revolved around the application's compliance with procedural requirements and the consideration of all relevant factors, including the potential impact on employees and the broader bargaining environment.

The court meticulously examined the procedural aspects of the application, confirming that the Laminex Group had correctly followed the necessary steps and provided adequate notice. The focus then shifted to whether the application was made in good faith and whether there were substantial changes in the circumstances of the parties that warranted a review of the agreement. The Laminex Group argued that significant changes in the business environment, including financial difficulties and operational challenges, necessitated the termination of the existing agreement. The CFMEU, representing the employees, contested this, asserting that the application was not made in good faith and that the changes cited were not sufficient to warrant termination.

In its decision, the Commission concluded that the Laminex Group had adequately demonstrated that the application met the statutory requirements for termination. The court found that the employer had shown substantial changes in circumstances, including financial instability and market pressures, which justified the need to renegotiate the terms of the agreement. The Commission also considered the impact on employees but determined that the overall circumstances warranted the termination of the existing agreement. The decision recognised the importance of balancing the rights and interests of both parties while ensuring that the termination was fair and in line with the legislative framework.

The final orders of the Commission were to terminate the Laminex Cairns Branch Agreement 2016-2019, effective from a specified date. The termination allowed for the parties to enter into a new agreement that would better reflect the current economic and operational realities. This decision provided clarity and direction for both the employer and the employees, enabling them to move forward with renewed negotiations that addressed the changing landscape of their working relationship.

The Laminex Group Pty Ltd T/A Laminex Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established