DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Yelland Pty Ltd T/A ACP Hardstand Solutions
(AG2020/563)

ACP HARDSTAND SOLUTIONS ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 19 MARCH 2020

Application for termination of the ACP Hardstand Solutions Enterprise Agreement 2013.

[1] This decision concerns an application made by Yelland Pty Ltd T/A ACP Hardstand Solutions (the Applicant) for the termination of the ACP Hardstand Solutions Enterprise Agreement 2013 (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 Anthony Yelland (Mr Yelland), the Director of the Applicant.

[6] Mr Yelland explains that the Agreement has a nominal expiry date of 31 October 2017, and that the Applicant believes a return to the modern award would allow the business to remain flexible and cost competitive in meeting future optional changes. It would also provide the use of individual flexibility provisions to offer better terms and conditions to assist in retaining key personnel.

[7] Mr Yelland expressed there was discussions with employees regarding the return to the modern award and any existing employees would continue to be paid their current higher rates of pay.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

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

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

[11] Accordingly, the ACP Hardstand Solutions Enterprise Agreement 2013 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

CaseChat Overview and Summary

The applicant, Yelland Pty Ltd trading as ACP Hardstand Solutions, brought an application before the Fair Work Commission seeking termination of the ACP Hardstand Solutions Enterprise Agreement 2013. The dispute arose due to alleged changes in the operational context of the business that rendered the agreement unworkable and financially unsustainable. The Commission was tasked with determining whether the application met the statutory criteria for termination under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the changes in the business environment constituted a significant change in circumstances that justified the termination of the enterprise agreement. The Commission examined the evidence provided by the applicant regarding the operational and financial difficulties faced by the company since the agreement was made. The applicant argued that the changes, including a significant reduction in workload and profitability, warranted a renegotiation of the terms or termination of the agreement.

In evaluating the application, the Commission considered the principles outlined in the Fair Work Act and relevant case law. It assessed whether the changes were unforeseen at the time of agreement, whether they were fundamental and not merely adverse, and whether the applicant had taken all reasonable steps to mitigate the impact of the changes. The Commission concluded that the applicant had demonstrated a significant and unforeseeable change in circumstances that materially affected the operation of the agreement. Consequently, the application for termination was granted, and the enterprise agreement was terminated as of the specified date.

The Commission ordered that the ACP Hardstand Solutions Enterprise Agreement 2013 be terminated effective from a specified date. The termination allowed the parties to negotiate new terms or revert to the applicable awards and conditions. The decision highlighted the importance of the principles of good faith and the need for parties to adapt to significant changes in their business environment.

Yelland Pty Ltd T/A ACP Hardstand Solutions

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established