DECISION

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

AGI & Staff Pty Ltd
(AG2016/2609)

AGI & STAFF PTY LTD AND THE CFMEU SHOP FITTING MANUFACTURING ENTERPRISE AGREEMENT 2011-2014

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 Shop Fitting Manufacturing Enterprise Agreement 2011-2014.

[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 Shop Fitting Manufacturing Enterprise Agreement 2011-2014 (Agreement). The Agreement is expressed to cover the Applicant 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 case before the Fair Work Commission involved an application by AGI & Staff Pty Ltd for the termination of the CFMEU Shop Fitting Manufacturing Enterprise Agreement 2011-2014. The applicant sought to end the agreement due to changed circumstances, asserting that the agreement was no longer appropriate given the current business environment. The Commission was tasked with determining whether the application met the criteria for termination as outlined in the Fair Work Act 2009.

The legal issues centred on whether the changed circumstances test had been satisfied and whether the application was made in good faith. The applicant argued that the agreement had become financially burdensome and was not aligned with the company’s operational needs. The Fair Work Commission needed to assess these claims against the legislative requirements and ensure that the application was not an abuse of process.

In its decision, the Commission found that the applicant had demonstrated a significant change in circumstances that justified the termination of the enterprise agreement. The evidence presented indicated that the company was facing severe financial difficulties, and the existing agreement was contributing to these issues. The Commission concluded that the application was made in good faith and that the changed circumstances warranted the termination of the agreement. Consequently, the termination was approved, with the agreement to expire on 28 June 2016.

AGI & Staff Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established