6P Construction Pty Ltd T/A The Trustee for The 6P Construction Unit Trust

[2020] FWCA 1259

[2020] FWCA 1259

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

6P Construction Pty Ltd T/A The Trustee for The 6P Construction Unit Trust
(AG2020/456)

6P CONSTRUCTION COLLECTIVE AGREEMENT 2008 -2012

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 12 MARCH 2020

Application for termination of the 6P Construction Collective Agreement 2008-2012.

[1] An application pursuant to Sch. 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s.225 of the Fair Work Act 2009 (the Act) was made by 6P Construction Pty Ltd T/A The Trustee for The 6P Construction Unit Trust (the Applicant) to terminate the 6P Construction Collective Agreement 2008-2012 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date. The nominal expiry date of the Agreement was 30 December 2012.

[3] Pursuant to Sch. 3, Item 16 of theTransitional Act:

“16 Collective agreement-based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2-4 of the Fair Work Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Further, ss.225 and 226 of the Act relevantly provide:

“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;

(c) an employee organisation covered by the agreement.

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] There are no employee organisations representing the employees of the Applicant. There were two employees covered by the Agreement, one permanent and one casual employee.

[6] Directions were issued for the filing of further material in support of the application. In response, Mr Tony Albertsen and Mr Craig Manly, Directors for the Respondent, provided a signed document in support of the termination application.

[7] The response provided by both Directors confirmed that the Applicant sought to terminate the Agreement and have the two employee’s employment revert to the Building and Construction Industry Award 2010 (the Award).

[8] The response also contained a copy of the communication that was provided to the two employees, containing a copy of the application and Directions, an explanation as to the Applicant’s reasons for lodging the application, a comparison of pay rates between the current Agreement and the Award. The response also detailed the effects that the termination would have on the two employees, with the effects being specific to each employee.

[9] Both employees covered by the Agreement provided responses confirming their support for the termination application. A copy of the two employee responses were provided to the Commission.

[10] Mr Albertsen and Mr Manly also confirmed that the termination of the Agreement would not prove contrary to the public interest.

[11] Further correspondence was sent from my Chambers to the two employees covered by the Agreement, seeking confirmation that they support the termination of the Agreement. Both employees provided a response confirming that they understood and accepted the changes that the termination of the Agreement would have on their employment conditions.

[12] Taking into account the matters in s.226 of the Act, and in accordance with the above submissions, I am satisfied that it would be appropriate to terminate the Agreement. The termination will take effect from 19 March 2020.

[13] I Order accordingly.

COMMISSIONER

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