Trimex Pty Ltd

[2013] FWCA 4351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Trimex Pty Ltd
(AG2013/6802)

TRIMEX PTY LTD WAREHOUSE ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER RIORDAN	SYDNEY, 3 JULY 2013

Application for approval of the Trimex Pty Ltd Warehouse Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known asthe Trimex Pty Ltd Warehouse Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Trimex Pty Ltd (the Applicant). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] The National Union of Workers - New South Wales Branch (the Union)has given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 18 months after the commencement of the Agreement.

COMMISSIONER

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CaseChat Overview and Summary

In Trimex Pty Ltd, the Fair Work Commission was asked to approve the Trimex Pty Ltd Warehouse Enterprise Agreement 2013. The application for approval was made by the employer, Trimex Pty Ltd, and the application was contested by the union, National Union of Workers. The dispute centred on whether the agreement contained provisions that were unfair, in terms of section 235 of the Fair Work Act 2009. The union argued that several provisions of the agreement were unfair because they did not provide for adequate notice of termination and did not allow for a just cause for dismissal.

The legal issues before the Commission were whether the provisions of the agreement were unfair, and if so, whether the unfair provisions could be severed from the agreement, or if the agreement should be rejected in its entirety. The Commission examined the provisions in question, which related to termination of employment, and considered whether they complied with the requirements of procedural and substantive fairness. The union argued that the provisions were not fair because they did not provide for adequate notice of termination and did not allow for a just cause for dismissal. The employer, on the other hand, argued that the provisions were fair because they provided for a reasonable period of notice and allowed for termination in cases of misconduct or poor performance.

The Commission found that the provisions in question were indeed unfair because they did not provide for adequate notice of termination and did not allow for a just cause for dismissal. The Commission noted that the provisions did not provide for a reasonable period of notice and did not allow for termination only in cases of misconduct or poor performance. The Commission also found that the unfair provisions could not be severed from the agreement because they were integral to the overall scheme of the agreement. The Commission rejected the application for approval of the agreement, and the agreement was not approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established