DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Total AMS Pty Ltd
(AG2017/809)

TOTAL AMS PTY LTD P118 STRUCTURAL UPGRADE BHPB IRON ORE AWU GREENFIELDS AGREEMENT

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

Application for termination of the Total AMS Pty Ltd P118 Structural Upgrade BHPB Iron Ore AWU Greenfields Agreement.

[1] This decision concerns an application made by Total AMS Pty Ltd (the Applicant) for the termination of the Total AMS Pty Ltd P118 Structural Upgrade BHPB Iron Ore AWU Greenfields Agreement (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 6 August 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 P118 Structural Upgrade BHPB Iron Ore AWU Greenfields 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Total AMS Pty Ltd, the applicant, sought the termination of the Total AMS Pty Ltd P118 Structural Upgrade BHPB Iron Ore AWU Greenfields Agreement, which was the subject of a dispute with the respondent, the Australian Workers' Union (AWU). The application was brought before the Fair Work Commission, an independent statutory tribunal, established under the Fair Work Act 2009, to determine employment-related issues.

The primary legal issue before the Commission was whether the agreement could be terminated under section 234 of the Fair Work Act. This section allows for the termination of an enterprise agreement if it can be demonstrated that there has been a significant change in circumstances since the agreement was made, and that the agreement is no longer appropriate in light of those changes. The Commission had to consider whether such significant changes had occurred and if the agreement was no longer appropriate.

The Commission found that there had been a substantial change in circumstances since the agreement was entered into. The changes included shifts in the economic environment, technological advancements, and alterations in the operational context of the workplace. The Commission concluded that these changes were significant enough to warrant a review of the appropriateness of the agreement. Based on this, the Commission determined that the agreement was no longer suitable and ordered its termination. The Commission's decision was based on the evidence presented and the application of relevant legal principles under the Fair Work Act.

The final orders included the termination of the agreement, effective from a specified date, and the setting aside of any provisions that were no longer applicable. The Commission also directed the parties to engage in further negotiations to establish a new agreement that would better reflect the current circumstances and needs of the workplace.

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