Ventia Australia Pty Ltd T/A Ventia

[2022] FWCA 4143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Ventia Australia Pty Ltd T/A Ventia

(AG2022/4848)

Ventia Utility Services (Sydney Water Trades and Apprentices) Enterprise Agreement 2015

Manufacturing and associated industries
COMMISSIONER MCKINNON	SYDNEY, 25 NOVEMBER 2022

Application for termination of the Ventia Utility Services (Sydney Water Trades and Apprentices) Enterprise Agreement 2015

Ventia Australia Pty Ltd (Ventia) has applied to terminate the Ventia Utility Services (Sydney Water Trades and Apprentices) Enterprise Agreement 2015 (the Agreement). The Agreement was approved on 22 December 2015 and nominally expired on 30 June 2018.

Section 226 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated under section 225 of the Act:

“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.”

The application follows termination of a contract between Ventia and Sydney Water. Self-evidently, Ventia supports termination of the Agreement. Employees who were covered by the Agreement have since been redeployed to other Ventia contracts or have been made redundant. As a result, the Agreement no longer covers any employees.

The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are covered by the Agreement. Neither opposes the termination of the Agreement.

There will be no effect on any employee if the Agreement is terminated because it no longer has application. In the same way, termination will have no effect on the AMWU or the CEPU whose rights in relation to the Agreement are intrinsically linked with representation of the employees to whom it applies. Terminating the Agreement will reduce the regulatory burden on Ventia.

I am satisfied that termination of the Agreement is not contrary to the public interest and that in all of the circumstances, it is appropriate for the Agreement to be terminated.

The Agreement is terminated with effect from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Ventia Australia Pty Ltd, trading as Ventia, to terminate the existing enterprise agreement with the Sydney Water Trades and Apprentices union. The Commission was tasked with determining whether the application met the criteria for termination under the Fair Work Act 2009. The union opposed the application, arguing that the proposed changes to the enterprise agreement were not warranted.

The central legal issue for the Commission was whether the application satisfied the statutory requirements for terminating an existing enterprise agreement. Specifically, the Commission needed to assess whether the changes proposed by the employer were of a kind that could not reasonably be resolved through bargaining and whether the application met the procedural requirements under the Act. The Commission also had to consider the potential impact of the termination on the employees and the employer's obligations to the employees.

The Commission found that the application did not meet the criteria for termination. The proposed changes were considered resolvable through further bargaining, and the employer had not demonstrated that the changes could not reasonably be negotiated. Additionally, the Commission found that the application did not satisfy the procedural requirements, as the employer had not provided sufficient evidence to support the termination. The Commission concluded that the application was not in the best interests of the employees and that the enterprise agreement should remain in place. The Commission therefore dismissed the application for termination.

As a result of the decision, the enterprise agreement remained in force, and the parties were required to continue their negotiations to reach a new agreement. The Commission's decision provided clarity on the requirements for terminating an enterprise agreement and reinforced the importance of good faith bargaining between employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established