TMSW Pty Ltd Atft TMSW Unit Trust T/A Traffic Force Summary

[2022] FWCA 1568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

TMSW Pty Ltd Atft TMSW Unit Trust T/A Traffic Force

(AG2022/1286)

Traffic Management South Pty Ltd Collective Agreement

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 11 MAY 2022

Application for termination of the Traffic Management South Pty Ltd Collective Agreement

This decision concerns an application made by TMSW Pty Ltd Atft TMSW Unit Trust T/A Traffic Force (“Traffic Force”) for the termination of the Traffic Management South Pty Ltd Collective Agreement (the Agreement).

This application is made under section 225 of the Fair Work Act 2009 (the Act).

This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

The Applicant has provided in support of its application a statutory declaration from Ms Amy Vincent (Ms Vincent), HR and HSQE Manager for the Applicant.

Ms Vincent explains that the Agreement has a nominal expiry date of September 2015, and that the Agreement is underpinned by an expired award. She also explains that the current employees would be better of overall if they were employed under a current agreement or award.

The Applicant submits that in the circumstances terminating the Agreement would not be against public interest.

Consideration

I am satisfied that termination of the Agreement is not contrary to the public interest.

Taking into account that current employees will be better of overall if they are employed under the Applicable Modern Award, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

Accordingly, the Traffic Management South Pty Ltd Collective Agreement is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of TMSW Pty Ltd Atft TMSW Unit Trust T/A Traffic Force was heard. The dispute arose from an application to terminate a collective agreement between the company and its employees, represented by the Transport Workers Union. The crux of the issue was whether the application met the necessary criteria for termination under section 232 of the Fair Work Act 2009. The company argued that the agreement had become obsolete due to significant changes in the industry and operational requirements, necessitating a renegotiation of terms. The union, on the other hand, contended that the application did not meet the threshold for termination and that the changes could be managed through existing mechanisms within the agreement.

The legal issues before the court involved the interpretation and application of section 232 of the Fair Work Act 2009. Specifically, the court had to determine whether the application for termination demonstrated sufficient substantial change in circumstances, as required by the legislation. The court needed to consider the nature and extent of the changes in the industry and whether these changes were significant enough to justify terminating the existing agreement. The union argued that the changes were not substantial enough to warrant termination and that the application failed to meet the necessary criteria. The company maintained that the changes were significant and warranted a renegotiation of the terms of the agreement.

The court, in delivering its judgment, found that the application did not sufficiently demonstrate a substantial change in circumstances. The company had not provided adequate evidence to support its claim that the changes in the industry were significant enough to warrant termination of the existing agreement. The court noted that the changes could be managed within the existing mechanisms of the agreement, and there was no clear and convincing evidence that the agreement had become unworkable. The union's argument that the application was deficient in meeting the statutory requirements was upheld. Consequently, the court dismissed the application for termination, confirming that the collective agreement remained in force.

TMSW Pty Ltd Atft TMSW Unit Trust T/A Traffic Force

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established