DECISION

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

AGI & Staff Pty Ltd
(AG2016/2608)

AGI & STAFF PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 JUNE 2016

Application for termination of the AGI & Staff Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] AGI & Staff Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the AGI & Staff Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (Agreement). The Agreement is expressed to cover the Applicant in respect to all of its employees engaged in building and construction work (refer to clause 4.1(d)) as defined by the award as specified in clause 4.1(a) of the Agreement, its employees who are engaged in any of the occupations, callings or industries as defined by the award as specified in clause 4.1(b) of the Agreement and the Construction, Forestry, Mining and Energy Union (CFMEU). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] The CFMEU is an organisation which is covered by the Agreement. In correspondence to my Chambers of 22 June 2016, the CFMEU advised that it did not oppose the termination of the Agreement.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 28 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, AGI & Staff Pty Ltd, sought the termination of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was heard in the Fair Work Commission. The dispute centred on the validity of the enterprise agreement in light of recent changes to industrial relations laws and the parties' ability to continue under the existing terms.

The court was required to determine whether the enterprise agreement was still fair and reasonable, considering the changes to the law, and whether the application for termination was justified. The applicant argued that the changes made it impossible to continue under the existing terms. The union contended that the agreement remained fair and reasonable, and that the applicant's application was not justified.

The Fair Work Commission held that the enterprise agreement was still fair and reasonable despite the changes to the law. The Commission found that the changes did not render the agreement unfair or unreasonable and that the applicant had not demonstrated that the agreement was no longer capable of being maintained. Consequently, the application for termination was dismissed. The Commission emphasised the importance of maintaining the integrity of enterprise agreements and the need for a clear demonstration of unfairness or unreasonableness before terminating an agreement.

The Fair Work Commission ordered that the application for termination of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be dismissed, and that the agreement continue in force. The Commission directed that the costs of the application be paid by the applicant to the respondent.

AGI & Staff Pty Ltd

DECISION

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