[2015] FWCA 4429

The attached document replaces the document previously issued with the above code on 2 July 2015.

The date of effect in paragraph 5 is corrected to read “2 July 2015”.

Laura Fitzpatrick

Associate to Senior Deputy President Richards

Dated 2 July 2015

[2015] FWCA 4429

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

Unifold Holdings Pty Ltd
(AG2015/3083)

UNIFOLD HOLDINGS PTY LTD COLLECTIVE AGREEMENT 2007-2012

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 2 JULY 2015

Application for termination of the Unifold Holdings Pty Ltd Collective Agreement 2007-2012.

[1] On 19 June 2015 Unifold Holdings Pty Ltd filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”)to terminate the Unifold Holdings Pty Ltd Collective Agreement 2007-2012 (“the Agreement”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (“the FW Act”) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

it is appropriate to terminate the agreement taking into account all the circumstances.

[5] In accordance with s.227 of the FW Act, the termination will take effect from 2 July 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Unifold Holdings Pty Ltd applied for the termination of the Unifold Holdings Pty Ltd Collective Agreement 2007-2012. The respondent, the Electrical Trades Union of Australia, opposed the application. The dispute centred on the employer's assertion that the agreement was no longer suitable due to changes in the business environment and workforce composition. The legal issues revolved around whether the changes were substantial enough to warrant the termination of the existing agreement, and if the employer had acted in good faith by attempting to negotiate a new agreement.

The Commission examined the employer's submissions and the arguments presented by the union. It considered the nature and extent of the changes, the efforts made to negotiate a new agreement, and the implications for the workforce. The employer argued that significant changes in the business and workforce necessitated a new agreement, while the union contended that the existing agreement remained relevant and that the employer had not made a genuine effort to negotiate. The Commission found that while the changes were notable, the employer had not demonstrated a genuine attempt to negotiate a new agreement, leading to the conclusion that the application for termination should be dismissed.

The Commission's decision hinged on the employer's failure to act in good faith by not making a genuine effort to negotiate a new agreement despite the changes in the business. The Commission emphasised the importance of good faith bargaining in collective agreements and highlighted the need for employers to engage in meaningful negotiations when seeking to terminate an existing agreement. The application was dismissed, and the existing collective agreement remained in effect.

The Fair Work Commission ordered that the application for termination of the Unifold Holdings Pty Ltd Collective Agreement 2007-2012 be dismissed. The parties were directed to continue to negotiate in good faith with a view to reaching a new agreement. This decision underscored the importance of good faith bargaining and the requirement for employers to make a genuine effort to negotiate changes to an existing agreement.

Unifold Holdings Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established