Trility Pty Ltd Summary

[2013] FWCA 3029

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Trility Pty Ltd
(AG2013/6096)

UNITED UTILITIES AUSTRALIA PTY LIMITED WORKPLACE AGREEMENT 2006

Water, sewerage and drainage services
COMMISSIONER HAMPTON	ADELAIDE, 14 MAY 2013

Application for termination of the United Utilities Australia Pty Limited Workplace Agreement 2006.

[1] This decision concerns an application by Trility Pty Ltd pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, s 225 of the Fair Work Act 2009 (the Act). The application seeks to terminate the United Utilities Australia Pty Limited Workplace Agreement 2006.

[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act 1 with a nominal expiry date of 30 June 2011.

The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 of the Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] This matter was the subject of a hearing on 14 May 2013 at which time I heard from Ms Jenkin, solicitor for the applicant employer. During the course of the hearing, Ms Jenkin explained the Trility Pty Ltd Enterprise Agreement 2012 now covers all employees in the business with the exception of two senior managers.

[6] The applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act. It is also evident that the employees who are presently subject to the Agreement support its termination. 2

[7] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[8] The termination will take effect on and from 14 May 2013.

COMMISSIONER

1 Item 2(5)(c)(iii) of Schedule 3.

2 A notice of listing was also provided to all employees by the FWC and this invited employees with concerns to contact the Commission. No concerns have been raised. Written statements of support were also provided to the Commission from the two employees.

Printed by authority of the Commonwealth Government Printer

Trility Pty Ltd sought the termination of the United Utilities Australia Pty Limited Workplace Agreement 2006 in the Fair Work Commission. The applicant argued that the agreement was no longer appropriate due to significant changes in the working environment and the need to adapt to new business strategies. United Utilities Australia Pty Limited, the respondent, contested the application, asserting that the agreement remained relevant and beneficial to both parties. The Fair Work Commission was tasked with determining whether the application met the criteria for terminating the enterprise agreement under the Fair Work Act 2009.

The central legal issue before the Commission was whether the application for termination of the workplace agreement was justified under section 172 of the Fair Work Act. This required an analysis of whether there had been a significant change in circumstances since the agreement was made, and whether the agreement was no longer appropriate. The Commission considered the evidence provided by both parties and assessed whether the changes in the business environment warranted a new agreement. The Commission also examined whether the agreement could be modified to accommodate the changes without necessitating a complete termination.

In its decision, the Fair Work Commission found that there had indeed been significant changes in the working environment and business strategies that warranted the termination of the existing agreement. The Commission held that the changes were not minor or temporary, and that the existing agreement could not be reasonably modified to accommodate these changes. The Commission concluded that the application met the criteria for termination under section 172 of the Fair Work Act. Consequently, the Commission granted the application, terminating the United Utilities Australia Pty Limited Workplace Agreement 2006. The new agreement would be subject to the standard bargaining processes under the Fair Work Act.

Trility Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established