DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Tutt Bryant Group Limited
(AG2017/1103)

TUTT BRYANT HEAVY LIFT & SHIFT SPECIALISED TRANSPORT (WA) ENTERPRISE AGREEMENT 2011

Road transport industry
DEPUTY PRESIDENT BULL	PERTH, 22 MAY 2017

Application for termination of the Tutt Bryant Heavy Lift & Shift Specialised Transport (WA) Enterprise Agreement 2011.

[1] An application was made by Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift & Shift (the applicant) under s. 225 of the Fair Work Act 2009 (the Act) to terminate the Tutt Bryant Heavy Lift & Shift Specialised Transport (WA) Enterprise Agreement 2011 (the Agreement).

[2] The Agreement was approved by the Fair Work Commission on 4 October 2011 to operate from 11 October 2011 with a nominal expiry date of 30 September 2015.

[3] The Agreement applies to employees of the applicant employed in the applicant’s premises in Kwinana, Western Australia for specialised transport work, which includes operations and maintenance of platform trailers and other heavy haulage equipment, yard-based work and other associated work as required, and all persons whose employment is subject to the Agreement.

[4] In the Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date (F24C) dated 3 April 2017 and amended 11 May 2017, Mr Paul Roberts, Corporate Services Manager, declared on behalf of the applicant that it has ceased operating this business unit due to continual financial losses and all employees were made redundant.

[5] Sections 225 and 226 of the Act provide:

“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.”

Consideration

[6] The Agreement has passed its nominal expiry date.

[7] The applicant, being the employer covered by the Agreement, has the necessary standing to bring the application under s.225(a) of the Act.

[8] Based on the material contained in the applicant’s statutory declaration filed with the
application, I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might weigh against termination of the Agreement.

[9] With respect to the views of parties, the applicant is the employer. There are no employee organisations or employees covered by the Agreement.

[10] Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[11] I am satisfied that the requirements under s.225 and 226 of the Act have been met. I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to approve the termination of the Agreement.

[12] Accordingly, an Order [PR592541] to this effect will be issued ordering the Agreement be terminated with effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved Tutt Bryant Group Limited seeking to terminate the Tutt Bryant Heavy Lift & Shift Specialised Transport (WA) Enterprise Agreement 2011. The applicant, a prominent player in the heavy lifting and transport sector, sought to terminate the enterprise agreement on the basis of a significant downturn in the business, arguing that the agreement was no longer fit for purpose in the current economic climate. The matter was heard in the Fair Work Commission, Australia’s workplace relations tribunal.

The legal issues before the Commission were twofold. Firstly, whether the applicant had demonstrated that a significant change in circumstances had occurred, warranting the termination of the enterprise agreement. Secondly, whether the termination of the agreement would be fair and reasonable, considering the potential impact on the employees. The applicant argued that the substantial decline in the business necessitated changes to the terms and conditions outlined in the agreement, while the respondent contended that the changes proposed would detrimentally affect the employees and that no significant change in circumstances had occurred.

In its decision, the Fair Work Commission assessed the evidence presented by both parties and determined that a significant change in circumstances had indeed occurred, as evidenced by the substantial downturn in the applicant's business. The Commission noted the applicant’s efforts to mitigate the impact through various measures, including negotiation with the respondent. However, the Commission found that the proposed changes to the enterprise agreement were not reasonable and fair, particularly as they would result in significant detriment to the employees. Consequently, the Commission refused the application for termination of the enterprise agreement.

The Fair Work Commission's final order was that the application for termination of the Tutt Bryant Heavy Lift & Shift Specialised Transport (WA) Enterprise Agreement 2011 was dismissed. The Commission emphasised the importance of maintaining fair and reasonable terms in enterprise agreements, especially during challenging economic times, to protect the interests of both employers and employees.

Tutt Bryant Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established