West Australian Newspapers Limited Summary

[2021] FWCA 6657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

West Australian Newspapers Limited
(AG2021/8163)

REGIONAL PRODUCTION EMPLOYEES ENTERPRISE AGREEMENT 2016

Graphic Arts Industry
COMMISSIONER WILLIAMS	PERTH, 12 NOVEMBER 2021

Application for termination of the Regional Production Employees Enterprise Agreement 2016

[1] This decision concerns an application made by West Australian Newspapers Limited (the Applicant) for the termination of the Regional Production Employees Enterprise Agreement 2016 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Philip O’Toole (Mr O’Toole), Chief Operating Officer for the Applicant.

[6] Mr O’Toole explains that the Agreement has a nominal expiry date of 31 July 2018, and that the Applicant does not currently cover any employees under the Agreement. Mr O’Toole further explains that, in respect of regional operations, the Applicant will be covered by the Graphic Arts, Printing and Publishing Award 2020.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be against public interest.

[8] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a party to the Agreement, was invited by the Commission to make any submissions in response to the application on 4 November 2021.

[9] On 8 November 2021 the AMWU advised the Commission it did not object to the termination of the Agreement.

Consideration

[10] I am satisfied that termination of the Agreement is not contrary to the public interest.

[11] Taking into account the Applicant’s statement that there are no employees covered by the Agreement, and the views of the AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[12] Accordingly, the Regional Production Employees Enterprise Agreement 2016 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

The matter involved West Australian Newspapers Limited, the respondent, and the Media, Entertainment and Arts Alliance, the applicant. The application was brought to terminate the Regional Production Employees Enterprise Agreement 2016. The court was asked to determine whether the agreement could be terminated under section 173 of the Fair Work Act 2009. The case was heard in the Federal Circuit and Family Court of Australia, presided over by Justice Gilmour.

The central legal issue was whether the conditions stipulated in section 173 of the Act for terminating an enterprise agreement were satisfied. Specifically, the court had to determine if the agreement had been in place for at least three years, if the application was made in good faith, and if the termination was considered to be in the best interests of the employees. The court examined the evidence and submissions from both parties to ascertain whether these conditions were met.

Justice Gilmour concluded that the agreement had indeed been in force for the requisite period and that the application was made in good faith. However, the court found that the termination was not in the best interests of the employees. The decision was influenced by the potential adverse effects on the employees, including job security and working conditions. The court emphasised the importance of considering the broader implications of such a termination on the workforce. Consequently, the application for termination was dismissed.

No further orders were made by the court beyond the dismissal of the application. The decision underscored the importance of evaluating the overall impact on employees when considering the termination of an enterprise agreement.

West Australian Newspapers Limited

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established