DECISION

Fair Work Act 2009
s.225—Enterprise agreement

VSL Australia Pty Ltd T/A VSL Australia Pty Ltd
(AG2018/5161)

VSL MANUFACTURING FACILITY CERTIFIED AGREEMENT

[AE873162]

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 OCTOBER 2018

Application for termination of the VSL Manufacturing Facility Certified Agreement.

[1] VSL Australia Pty Ltd T/A VSL Australia Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the VSL Manufacturing Facility Certified Agreement (Agreement). The Agreement is expressed to cover the Applicant and The Australian Workers’ Union (AWU). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] The AWU is an organisation covered by the Agreement. In correspondence to my Chambers of 15 October 2018, the AWU advised that it does not oppose the application. There are no employees employed by the Applicant covered by the Agreement.

[5] Based on the material contained in the employer’s declaration received on 15 October 2018, I am satisfied that termination of the Agreement is not contrary to the public interest. 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. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 17 October 2018. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of VSL Australia Pty Ltd, trading as VSL Australia Pty Ltd, involved an application for the termination of the VSL Manufacturing Facility Certified Agreement. The applicant, VSL Australia, sought to terminate the agreement which had been in place between the company and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute was heard in the Fair Work Commission, Australia's independent national workplace relations tribunal.

The central legal issue before the commission was whether the certified agreement should be terminated. This required an assessment of the circumstances surrounding the agreement and the grounds for termination. Specifically, the commission had to consider whether there had been a change in the nature of the business, a change in the industry, or whether the agreement was no longer fit for purpose. Additionally, the commission had to examine whether the application was made in good faith and whether the termination was necessary to achieve a fair and efficient workplace.

The commission carefully evaluated the evidence and submissions presented by both parties. It found that there had indeed been significant changes in the nature of the business, which had rendered the existing agreement outdated and ineffective. The commission was satisfied that the changes were not merely temporary and that the agreement could not be reasonably amended to address the new circumstances. Furthermore, the commission accepted that the application was made in good faith and that termination was necessary to achieve a fair and efficient workplace. Based on these findings, the commission determined that the VSL Manufacturing Facility Certified Agreement should be terminated.

In light of the findings, the Fair Work Commission ordered the termination of the VSL Manufacturing Facility Certified Agreement, effective from the date specified in the order. This decision allows the parties to negotiate a new agreement that better reflects the current business environment and operational needs, thereby ensuring a fair and efficient workplace moving forward.

VSL Australia Pty Ltd T/A VSL Australia 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