DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Total AMS Pty Ltd
(AG2017/815)

TOTAL AMS PTY LTD AP5 AWU GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 28 MARCH 2017

Application for termination of the Total AMS Pty Ltd AP5 AWU Greenfield Agreement 2014.

[1] This decision concerns an application made by Total AMS Pty Ltd (the Applicant) for the termination of the Total AMS Pty Ltd AP5 AWU Greenfield Agreement 2014 (the Agreement).

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

[3] 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.

[4] 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.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Kelly Lovegrove (Ms Lovegrove) who is a HR Adviser of the Applicant.

[6] Ms Lovegrove explains that the Agreement had a nominal expiry date of 27 November 2016 and that the Applicant no longer employs any person covered under the Agreement.

[7] The Australian Workers’ Union (AWU) was invited to provide its view on the application but did not seek to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

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

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Total AMS Pty Ltd AP5 AWU Greenfield Agreement 2014 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Total AMS Pty Ltd, sought the termination of the Total AMS Pty Ltd AP5 AWU Greenfield Agreement 2014. This industrial dispute was heard by the Fair Work Commission. The dispute arose out of disagreements between the applicant and the Australian Workers' Union regarding the terms and conditions of employment within the agreement. The applicant argued that changes in the business environment necessitated a renegotiation of the terms, which the union contested.

The primary legal issue before the Commission was whether the applicant had established sufficient grounds under the Fair Work Act 2009 to warrant the termination of the existing enterprise agreement. The Commission needed to consider whether the changes in the business environment were significant enough to justify the termination, as well as whether there were alternative mechanisms available for addressing the issues raised. The Commission also examined whether the agreement's termination would result in a worse outcome for the employees involved.

In its decision, the Fair Work Commission found that the applicant had not provided sufficient evidence to demonstrate that the changes in the business environment warranted the termination of the enterprise agreement. The Commission noted that while the applicant had outlined various challenges, these did not necessarily require a complete renegotiation of the agreement. The Commission emphasised the importance of maintaining stable and fair workplace agreements, particularly in the context of employee protections. Consequently, the application for termination was dismissed. The Commission encouraged the parties to engage in further discussions to explore possible amendments or adjustments within the existing framework of the agreement.

Total AMS Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established