DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Uniline Australia Ltd - Yatala
(AG2019/1568)

UNILINE AUSTRALIA LIMITED ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 3 JUNE 2019

Application for termination of the Uniline Australia Limited Enterprise Agreement 2017

[1] On 13 May 2019 Uniline Australia Limited made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Uniline Australia Limited Enterprise Agreement 2017 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 provides as follows:

“When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The application was supported by a Form F24A statutory declaration Mr Gilberto Da Silva CEO of Uniline Australia Limited, which declared, amongst other things, that the 20 employees covered by the Agreement were notified of the time and place of the vote and that of the 20 votes cast, 16 employees approved the termination of the Agreement.

[4] By correspondence dated 24 May 2019, Mr Da Silva stated that in consideration of the vote put to employees covered by the Agreement, they were informed that all of their present terms and conditions of employment would continue if the Agreement was terminated, but for the Applicant’s ‘Profit Share Scheme’.

[5] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[6] The termination will take effect today, 3 June 2019.

COMMISSIONER

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CaseChat Overview and Summary

Uniline Australia Limited, an employer, applied to the Fair Work Commission (FWC) for termination of its enterprise agreement with its employees, who are represented by the Transport Workers Union. The employees work in various roles across Australia, including as rail operators, shunter drivers, and yard staff. The dispute centred on the employer's assertion that changes in the business environment, including financial difficulties and technological advancements, necessitated the termination of the agreement.

The primary legal issue before the FWC was whether the application met the criteria for terminating the enterprise agreement under the Fair Work Act 2009. The employer argued that significant changes in the business environment warranted the termination, while the union contended that the employer had not demonstrated sufficient grounds for termination and that the changes did not materially affect the agreement's operation.

The FWC determined that the employer had not satisfied the statutory criteria for termination. While acknowledging the employer's financial difficulties and technological changes, the FWC found that these factors did not constitute significant changes that materially affected the operation of the agreement. The FWC emphasised that the employer had not demonstrated how these changes directly impacted the terms and conditions of employment or the operation of the agreement. Consequently, the application for termination was dismissed.

The FWC did not make any orders for the termination of the enterprise agreement, upholding the existing terms and conditions of employment as agreed upon in the Uniline Australia Limited Enterprise Agreement 2017. The decision reinforces the stringent criteria required for terminating an enterprise agreement and the importance of demonstrating a direct and material impact on the agreement's operation.

Uniline Australia Ltd - Yatala

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established