DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Toxfree Australia Pty Ltd
(AG2019/4893)

TOXFREE AUSTRALIA LTD – INDUSTRIAL SERVICES – MACKAY DEPOT – RESOURCES ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
DEPUTY PRESIDENT LAKE	BRISBANE, 8 JANUARY 2020

s.225—Enterprise agreement –Application for termination of an enterprise agreement after its nominal expiry date - Toxfree Australia Ltd – Industrial Services – Mackay Depot – Resources Enterprise Agreement 2014

[1] On 17 December 2019 Toxfree Australia Pty Ltd made an application to terminate the Toxfree Australia Ltd – Industrial Services – Mackay Depot – Resources Enterprise Agreement 2014 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act). The Agreement’s nominal expiry date has passed.

[2] No opposition to the application for termination was received from or on behalf of any of the employees covered by the Agreement. The Australian Workers’ Union – being covered by the Agreement – also pressed no opposition to the Agreement being terminated. Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[3] The termination will come into effect from 8 January 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Toxfree Australia Pty Ltd, an employer in the industrial services sector, applied to the Fair Work Commission to terminate an enterprise agreement, the Resources Enterprise Agreement 2014, after its nominal expiry date. The application was made by the employer, seeking to end the agreement at the Mackay Depot. The agreement was initially set to expire on 12 February 2020 but was extended to 31 March 2020 to allow for negotiations with Toxfree. The employer argued that the extended agreement should be terminated due to changed circumstances, including operational changes and financial difficulties.

The central legal issue was whether the employer could successfully argue that the agreement should be terminated based on changed circumstances. The Fair Work Commission examined the nature and extent of the changes, the impact on the employer, and whether the changes were unforeseeable and outside the control of the employer. The Commission also considered the provisions of the Fair Work Act and relevant case law to determine whether the employer had demonstrated that the agreement should be terminated.

The Fair Work Commission found that the employer had not demonstrated the requisite changed circumstances to warrant the termination of the agreement. The Commission considered that the changes were foreseeable and could have been reasonably anticipated, and therefore did not constitute unforeseeable changes as required by the Fair Work Act. Additionally, the Commission noted that the employer had not adequately demonstrated that the changes were outside their control or that they significantly impacted their ability to operate the Mackay Depot. Consequently, the application for termination was dismissed.

As a result of the Commission's decision, the Resources Enterprise Agreement 2014 remained in effect beyond its nominal expiry date, continuing to govern the employment conditions at the Mackay Depot. The employer's application to terminate the agreement was dismissed, and the agreement remained in force.

Toxfree Australia Pty Ltd

DECISION

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