DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Titan Wheels Australia Pty Ltd
(AG2020/2601)

TITAN WHEELS AUSTRALIA PTY LIMITED AND THE AMWU ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 30 OCTOBER 2020

Application for termination of the Titan Wheels Australia Pty Limited and the AMWU Enterprise Agreement 2012.

[1] This decision concerns an application made by Titan Wheels Australia Pty Ltd (Applicant) to terminate the Titan Wheels Australia Pty Limited and the AMWU Enterprise Agreement 2012 (Agreement). The application was made under s.222 of the Fair Work Act 2009 (the Act), following a vote of employees covered by the Agreement that agreed to the termination.

[2] The Agreement is a single enterprise agreement. Its nominal expiry date was 30 June 2015.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is covered by the Agreement. On 10 September 2020, the AMWU advised my chambers that it opposed the application to terminate the Agreement.

[4] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

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.

Continue reading Titan Wheels Australia Pty Ltd

Details

AGLC: Titan Wheels Australia Pty Ltd [2020] FWCA 5715
Case: [2020] FWCA 5715
Decision Date: 30 OCTOBER 2020

CaseChat Overview and Summary

Titan Wheels Australia Pty Ltd, a company involved in the manufacture of wheels, sought the termination of the AMWU Enterprise Agreement 2012, which governed the employment conditions of its workers. The Australian Manufacturing Workers' Union (AMWU) opposed the application. The matter was heard in the Fair Work Commission, the body responsible for resolving employment disputes under Australian law.

The central legal issues before the Commission were whether the Agreement had become a spent agreement and whether the AMWU had failed to provide sufficient evidence to support the continuation of the Agreement. The Commission needed to determine if the Agreement remained applicable to the workforce and whether the union had adequately demonstrated the necessity for the Agreement to continue in effect.

The Fair Work Commission found that the AMWU had not provided sufficient evidence to support the continuation of the Agreement. The Commission noted that the Agreement had become a spent agreement as the workforce had significantly reduced, and the terms of the Agreement no longer applied to a sufficient number of employees. The Commission concluded that the AMWU had not met its burden of proof to demonstrate the ongoing relevance of the Agreement. Consequently, the application for termination was successful.

As a result of the Commission's decision, the Titan Wheels Australia Pty Ltd and the AMWU Enterprise Agreement 2012 was terminated. The workers' employment conditions were now governed by the relevant general awards or agreements unless otherwise specified.

Orders