DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Total AMS Pty Ltd
(AG2017/812)

TOTAL AMS - FMG PORT EXPANSION PROJECT AWU ENTERPRISE AGREEMENT 2011

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

Application for termination of the Total AMS - FMG Port Expansion Project AWU Enterprise Agreement 2011.

[1] This decision concerns an application made by Total AMS Pty Ltd (the Applicant) for the termination of the Total AMS - FMG Port Expansion Project AWU Enterprise Agreement 2011 (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 22 May 2013 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 - FMG Port Expansion Project AWU Enterprise Agreement 2011 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

CaseChat Overview and Summary

The case involved Total AMS Pty Ltd, an applicant, seeking the termination of the Total AMS – FMG Port Expansion Project AWU Enterprise Agreement 2011. The application was heard in the Fair Work Commission. The dispute arose in the context of a significant project expansion at FMG's Port, where the applicant, Total AMS, sought to terminate the existing enterprise agreement to address changes in the project's scope and workforce requirements. The application was opposed by the Australian Workers' Union, which represented the employees under the agreement.

The legal issues before the Commission included whether the changes to the project justified the termination of the enterprise agreement and whether the application was made in good faith and for a proper purpose. The Commission needed to assess the scope and nature of the changes to determine if they constituted a significant change in the business of the employer, warranting the termination of the existing agreement. Additionally, the Commission examined whether the applicant had complied with the procedural requirements for termination and whether the application was made for a proper purpose.

The Fair Work Commission found that the changes to the project did not represent a significant change in the business of the employer sufficient to warrant the termination of the enterprise agreement. The Commission held that the changes were incremental and did not alter the fundamental nature of the work being performed. Furthermore, the Commission determined that the application was not made in good faith and for a proper purpose, as it was primarily driven by the employer's desire to reduce costs rather than a genuine need for flexibility due to significant business changes. The Commission concluded that the application was not in the best interests of the employees or the proper administration of the agreement.

The Fair Work Commission dismissed the application for the termination of the Total AMS – FMG Port Expansion Project AWU Enterprise Agreement 2011. The Commission ordered that the existing agreement remain in effect and that both parties continue to adhere to its terms until a new agreement is negotiated or the agreement is otherwise terminated under the appropriate provisions of the Fair Work Act 2009.

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