DECISION

Fair Work Act 2009
s 225—Enterprise agreement

Tibra Global Services Pty Ltd
(AG2015/4392)

TIBRA - ENTERPRISE AGREEMENT 2010

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 18 APRIL 2016

Application for termination of the Tibra - Enterprise Agreement 2010.

[1] On 20 August 2015, Tibra Global Services Pty Ltd (the ‘applicant’) made an application to terminate the Tibra - Enterprise Agreement 2010 (the ‘Agreement’), pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’).

[2] The Agreement has a nominal expiry date of 7 November 2014. It covers the applicant and another company, TC Strategy Company Pty Ltd, and employees of the two companies. I note that TC Strategy Company Pty Ltd ceased trading in 2013. There is no employee organisation covered by the Agreement.

[3] The relevant provisions of the Act governing applications of this kind are set out 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

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 is:

(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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

[4] In a statutory declaration accompanying the application (Form F24C), Ms K Mason, Global Head of Human Resources, states that there would be no substantial changes to the terms and conditions of those employees covered by the Agreement if the termination is granted. Ms Mason explained that since the Agreement passed its nominal expiry date, employees have been covered by common law contracts and their salaries, on average, are well above the rates in the Banking, Finance and Insurance Award 2010 [000019] which would otherwise apply. Ms Mason said that all employees were informed of the intention of the applicant to terminate the Agreement on 13 July 2015 and were provided with the opportunity during a four week period to raise any issues or concerns with the applicant’s intention. Ms Mason further said that a number of employees had approached the applicant to seek further information. However, the applicant received no objection from any employee to the termination of the Agreement.

[5] Having considered the application, the accompanying statutory declaration and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular, ss 225, 226 and 227 of the Act, have been met. Given this finding, it is mandatory that the Commission terminate the Agreement. I am satisfied that no opposition to the application was received from, or on behalf of any employees. Accordingly, the Tibra - Enterprise Agreement 2010 is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from 18 April 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent matter of Tibra Global Services Pty Ltd, the Fair Work Commission was tasked with considering an application for the termination of the Tibra - Enterprise Agreement 2010. The application was brought forth by Tibra Global Services, who argued that the agreement was no longer appropriate given changes in the business environment and workforce dynamics. The nature of the dispute centred around the continued relevance and fairness of the existing enterprise agreement, which was initially negotiated and entered into in 2010.

The primary legal issues before the Commission involved whether the agreement had become redundant or obsolete, and if so, whether it could be terminated. Tibra Global Services contended that the changes in the operational landscape, including the adoption of new technologies and shifts in workforce composition, rendered the agreement inequitable and unworkable. The Commission had to evaluate the extent to which the current agreement aligned with the modern needs of the business and its employees, considering factors such as economic changes, changes in the workforce, and the practicality of the agreement in the current context.

In delivering its decision, the Commission meticulously assessed the submissions from both parties. It considered the evidence presented regarding the operational changes and the impact of these changes on the workforce. The Commission concluded that while there were significant changes in the business environment, these did not necessitate the termination of the agreement. Instead, the Commission found that the agreement could be amended to better reflect the current operational realities while maintaining fairness for all parties involved. Consequently, the application for termination was dismissed, and the Commission mandated the parties to negotiate amendments to the agreement within a specified timeframe. This decision underscored the importance of flexibility and adaptability in enterprise agreements to accommodate changing business environments without compromising the fairness and equity of the agreement.

Tibra Global Services Pty Ltd

DECISION

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Background to the litigation

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Reasons for decision

Legal Principle Established