WesTrac Pty Ltd

[2013] FWCA 855

[2013] FWCA 855

FAIR WORK COMMISSION

DECISION

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

WesTrac Pty Ltd
(AG2013/4549)

BUCYRUS AUSTRALIA BERESFIELD ENTERPRISE AGREEMENT 2010

COMMISSIONER BULL SYDNEY, 18 FEBRUARY 2013

Application for approval of the proposed termination of the “Bucyrus Australia Beresfield Enterprise Agreement 2010”.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) by WesTrac Pty Ltd (the Applicant) to terminate the Bucyrus Australia Beresfield Enterprise Agreement 2010 (the Agreement).

[2] The Agreement was approved by Fair Work Australia (FWA) on 19 July 2010. The Agreement commenced operation on 26 July 2010, in accordance with s.54 of the Act and had a nominal expiry date of 31 March 2012. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) was covered by the Agreement.

[3] This application has been made by WesTrac Pty Ltd. In a statutory declaration dated 21 January 2013 made by Mr Daniel deBijl, Senior IR/HR Advisor, he states that on 1 June 2012, WestTrac Pty Ltd acquired part of the Bucyrus business and associated employees. The Agreement transferred with the Buyrus employees employment. I am satisfied that WestTrac Pty Ltd is a party able to apply to the Commission for the termination of the Agreement in accordance with s.225(a) of the Act.

[4] Mr deBijl’s statutory declaration states that the Applicant has had discussions with the affected employees regarding their conditions of employment and the effect of the proposed termination. The effect being that employees will be covered by the WesTrac Pty Ltd (New South Wales Services Operations) Enterprise Agreement 2010, which has a nominal expiry date of 31 January 2013. The statement further provides that the AMWU met with and discussed with all affected employees in relation to terminating the Agreement. The AMWU and the affected employees did not raise any further concerns after the discussions.

[5] The statement further provides that a ballot notification was issued to the affected employees on 31 December 2012. A copy of the ballot notification was provided to the Commission advising the affected employees that a ballot was to be conducted on 9 January 2013 and close on 14 January 2013 to terminate the Agreement. A copy of the ballot results was provided to the Commission, with all affected employees agreeing to terminate the Agreement.

[6] Subdivision D of Division 7 of Part 2-4 of the Act relevantly provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

...

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.”

[7] Having regard to the material provided and the legislative requirements of s.226 of the Act, I am satisfied that it is not contrary to the public interest to terminate the Agreement. The material shows that the affected employees are aware of the application. In addition they have received information from the Applicant and the AMWU regarding the effect of the termination and have confirmed they understood that information and supported the termination.

[8] Taking into account the material provided relevant to those matters in s.226 of the Act the Commission must terminate the Agreement. The application for termination is therefore approved. The Agreement is terminated with effect from 18 February 2013.

COMMISSIONER

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