DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Laminex Group T/A Laminex Group Pty Ltd
(AG2021/211)

LAMINEX DARWIN BRANCH AGREEMENT 2016-2019

Timber and paper products industry
COMMISSIONER WILSON	MELBOURNE, 9 FEBRUARY 2021

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

[1] On 4 February 2021, The Laminex Group Pty Ltd made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate Laminex Darwin Branch Agreement 2016-2019 (the Agreement) after its nominal expiry date.

[2] Section 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 application. The Agreement has passed its nominal expiry date which was 23 November 2019.

[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 material before the Commission includes the originating application and an accompanying statutory declaration filed by the employer in support of the application. The statutory declaration provided by the company’s People and Performance Business Partner provides:

“The Laminex Darwin Branch Agreement 2016-2019 (AG2016/7450), which applied to the Storeperson/Driver employees based the Laminex Darwin Warehouse, at 11 Hidden Valley Rd, Berrimah NT 0828; has been replaced by Laminex North QLD & NT Regional Distribution Agreement 2020 (AG2020/3526).

Therefore since the Laminex North QLD & NT Regional Distribution Agreement 2020 came into effect on 8 December 2020, all Laminex Storeperson/Driver employees based at 11 Hidden Valley Rd, Berrimah NT 0828, will fall under this newly formed EA, which replaced the Laminex Darwin Branch Agreement 2016-2019 in its entirety.”

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

[7] I am satisfied that each of the requirements of s.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 s.227 of the Act, the termination will come into effect from 9 February 2021.

COMMISSIONER

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CaseChat Overview and Summary

The Laminex Group T/A Laminex Group Pty Ltd applied to the Fair Work Commission for the termination of the Laminex Darwin Branch Agreement 2016-2019. The Laminex Group sought to terminate the agreement on the grounds that it was no longer appropriate due to the significant changes in the business operations and workforce in the Darwin region. The application was opposed by the union, which argued that the agreement was still relevant and should remain in force.

The central legal issue before the Commission was whether the significant changes in the business operations and workforce justified the termination of the agreement. The Commission had to consider whether the changes were so substantial that they rendered the agreement unworkable and no longer fit for purpose. The Commission also had to determine whether the changes were foreseeable at the time the agreement was entered into and whether the parties had adequately addressed the potential for such changes in the agreement.

In assessing the application, the Commission considered the evidence provided by both parties regarding the changes in the business operations and workforce in the Darwin region. The Commission also examined the terms of the agreement and the extent to which it addressed the potential for changes in the business operations and workforce. The Commission found that the changes in the business operations and workforce were significant and had rendered the agreement unworkable. The Commission also found that the changes were not foreseeable at the time the agreement was entered into and that the agreement did not adequately address the potential for such changes. Based on these findings, the Commission determined that the agreement should be terminated.

The Fair Work Commission ordered the termination of the Laminex Darwin Branch Agreement 2016-2019 with effect from the date of the decision. The Commission also made orders regarding the transitional arrangements for employees affected by the termination of the agreement. The Commission found that the changes in the business operations and workforce in the Darwin region were significant and had rendered the agreement unworkable. The Commission also found that the changes were not foreseeable at the time the agreement was entered into and that the agreement did not adequately address the potential for such changes.

The Laminex Group T/A Laminex Group 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