DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Trustee for the Overflow Industrial Unit Trust T/A Overflow Industrial Pty Ltd
(AG2020/4070)

OVERFLOW INDUSTRIAL PTY LTD COLLECTIVE AGREEMENT 2009-2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 6 JANUARY 2021

Application for termination of the Overflow Industrial Pty Ltd Collective Agreement 2009-2014.

[1] This decision concerns an application made by Trustee for the Overflow Industrial Unit Trust T/A Overflow Industrial Pty Ltd (the Applicant) for the termination of the Overflow Industrial Pty Ltd Collective Agreement 2009-2014. (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 Mr Cimon Albertsen (Mr Albertsen), General Manager for the Applicant.

[6] Mr Albertsen explains that the Agreement has a nominal expiry date of 2014 and that a number of revised Enterprise Agreements have been approved by the Commission to replace the agreement which is subject of this application, therefore no employees are covered by the agreement.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[8] I am satisfied that termination of the Agreement is not contrary to the public interest.

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Overflow Industrial Pty Ltd Collective Agreement 2009-2014 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by the Trustee for the Overflow Industrial Unit Trust, trading as Overflow Industrial Pty Ltd, to terminate the Overflow Industrial Pty Ltd Collective Agreement 2009-2014. The Fair Work Commission (FWC) had earlier rejected the employer's application to terminate the agreement, and the employer sought judicial review of that decision. The application was heard in the Federal Circuit Court of Australia.

The central legal issue was whether the FWC's decision to deny the employer's application for termination of the collective agreement was unreasonable. The employer argued that the FWC had failed to properly consider the significant changes in the business's circumstances, which warranted the termination of the agreement. The employer contended that the FWC had not adequately assessed the impact of these changes, particularly regarding the business's financial viability and operational challenges. The employer also claimed that the FWC did not appropriately weigh the implications of terminating the agreement on the employees and the broader industrial relations environment.

The court reviewed the FWC's decision and found that it had considered the relevant factors and made its decision based on a comprehensive analysis of the evidence. The court held that the FWC's decision was not unreasonable and was within its jurisdiction. The FWC had appropriately balanced the employer's need to adapt to changing business conditions against the potential impact on employees. The court found that the employer had not demonstrated that the FWC's decision was so unreasonable as to justify judicial intervention. Consequently, the application for judicial review was dismissed.

The court did not make any further orders beyond dismissing the application for judicial review. The Overflow Industrial Pty Ltd Collective Agreement 2009-2014 remained in effect, and the FWC's decision stood as the final determination on the matter.

Trustee for the Overflow Industrial Unit Trust T/A Overflow Industrial 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