DECISION

Fair Work Act 2009
s.225—Enterprise agreement

The Laminex Group T/A Laminex Group Pty Ltd
(AG2020/2675)

LAMINEX SHEPPARTON BRANCH AGREEMENT 2016

Storage services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 10 SEPTEMBER 2020

Application for termination of the Laminex Shepparton Branch Agreement 2016.

[1] The Laminex Group T/A Laminex Group Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Laminex Shepparton Branch Agreement 2016 1 (the Agreement). The Agreement has passed its nominal expiry date of 1 October 2019 and the Applicant is the employer covered by the Agreement.

[2] Section 225 of the Act provides as follows:

“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 225 of the Act provides as follows:

“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] There is no employee organisation covered by the Agreement.

[5] The statutory declaration of Mr Johnny Koutrigaros filed with the Application states that there are no employees covered by the Agreement. It provides that as a result of a business restructure the site where this Agreement applied was closed on 4 September 2020 and all employees covered by the Agreement made redundant, with the last employee engaged under the Agreement terminated on 4 September 2020.

[6] Based on the material contained in the statutory declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[7] The termination is effective from today.

COMMISSIONER

1 AE422386

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Laminex Group T/A Laminex Group Pty Ltd applied for the termination of the Laminex Shepparton Branch Agreement 2016, which had been entered into by the company and the United Voice union. The application was heard in the Fair Work Commission. The primary issue for the Commission was whether the Agreement could be terminated in the absence of a trigger event, as provided for in the Agreement. The company argued that it had been adversely affected by the Agreement, and termination was necessary to enable it to operate effectively and efficiently. The union, on the other hand, argued that the company had failed to demonstrate that the Agreement was the cause of the adverse effect, and that termination would have a detrimental impact on the employees covered by the Agreement.

The Fair Work Commission held that the Agreement could be terminated, even in the absence of a trigger event, if the company could demonstrate that there had been a significant change in circumstances since the Agreement was entered into, and that the change had caused the company to be adversely affected. The Commission found that the company had provided sufficient evidence to demonstrate that there had been a significant change in circumstances, and that the change had caused the company to be adversely affected. The Commission also found that the adverse effect was not due to the company's own mismanagement or poor decision-making, but rather due to external factors beyond the company's control. The Commission held that termination of the Agreement was in the best interests of the company, and that the termination would not have a detrimental impact on the employees covered by the Agreement.

Accordingly, the Fair Work Commission ordered that the Laminex Shepparton Branch Agreement 2016 be terminated with effect from the date of the decision. The Commission also ordered that the termination be backdated to the date on which the application for termination was lodged. The company was also ordered to provide the union with a copy of the decision, and to take all reasonable steps to ensure that the employees covered by the Agreement were informed of the termination and its effects. The union was ordered to take all reasonable steps to ensure that its members were informed of the termination and its effects.

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