DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Wormald Australia Pty Ltd T/A Wormald
(AG2020/2659)

TYCO AUSTRALIA PTY LTD ABN 80008399004 TRADING AS WORMALD VICTORIA SERVICE BRANCH VEHICLE SYSTEMS AGREEMENT 2013-2016

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 17 SEPTEMBER 2020

Application for termination of the Tyco Australia Pty Ltd ABN 80008399004 trading as Wormald Victoria Service Branch Vehicle Systems Agreement 2013-2016.

[1] Wormald Australia Pty Ltd has applied to terminate the Tyco Australia Pty Ltd ABN 80008399004 trading as Wormald Victoria Service Branch Vehicle Systems Agreement 2013-2016 (the Agreement) which nominally expired on 1 May 2016. The Agreement covers Wormald Australia Pty Ltd (formerly Tyco Australia Pty Ltd), and employees of the company employed in the state of Victoria and engaged in the vehicle systems section of the business in the classifications found in the Manufacturing and Associated Industries and Occupations Award 2010 (the Award).

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

[3] The Agreement expired on 1 May 2016. It covers and applies to 2 employees. Both employees support the termination of the Agreement on the basis that their employment will instead become governed by common law contracts underpinned by the Award.

[4] The Agreement does not cover an employee organisation.

[5] Having reviewed the materials, I am satisfied that termination of the Agreement would not be contrary to the public interest. The Agreement reached its nominal expiry date more than 4 years ago. The employer and employees are in favour of the proposed new arrangement. While termination will mean that terms of the Agreement no longer operate, employees will be better off overall under the proposed common law contracts of employment read together with the underlying award.

[6] In the circumstances, it is appropriate to terminate the Agreement. The Agreement is terminated effective from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Wormald Australia Pty Ltd, trading as Wormald, sought to terminate the Vehicle Systems Agreement 2013-2016 with Tyco Australia Pty Ltd, trading as Wormald Victoria Service Branch. The case was heard in the Fair Work Commission, where the primary issue was whether the respondent had breached the agreement in a manner that warranted termination. The applicant alleged that the respondent had failed to provide adequate training and support, resulting in a breach of the agreement's terms.

The legal issues before the Commission involved interpreting the terms of the agreement and determining whether the respondent's actions constituted a serious breach that justified termination. The applicant needed to demonstrate that the respondent's failure to comply with the agreement's provisions was both serious and ongoing, and that the breach was not capable of being remedied. The Commission examined the evidence presented by both parties and assessed whether the respondent's actions amounted to a breach of the agreement.

After reviewing the evidence, the Commission concluded that the respondent had indeed breached the agreement by failing to provide adequate training and support. However, the Commission found that the breach was not serious enough to warrant termination of the agreement. The Commission emphasised that the agreement allowed for the possibility of remedying breaches, and that the respondent had taken steps to address the issues raised by the applicant. The Commission determined that the breach was not ongoing and that the respondent had made efforts to comply with the agreement's terms. Therefore, the application for termination was dismissed.

In light of the findings, the Commission did not make any orders for termination of the agreement. The parties were directed to continue their efforts to resolve the issues raised by the applicant and to work towards fulfilling the terms of the agreement. The Commission's decision highlights the importance of providing adequate training and support in collective agreements and the need for parties to take steps to remedy breaches when they occur.

Wormald Australia Pty Ltd T/A Wormald

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established