All Round Building Solutions Pty Ltd

[2020] FWC 1066

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

All Round Building Solutions Pty Ltd

(AG2020/215)

All Round Building Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015

Building, metal and civil construction industries
Deputy President Mansini	MELBOURNE, 27 FEBRUARY 2020

Application for termination of the All Round Building Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

All Round Building Solutions Pty Ltd (the Applicant) has applied to terminate its All Round Building Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (the Agreement) under the Fair Work Act 2009 (Cth) (the Act).

The Agreement was approved by the Commission on 29 July 2014 and has a nominal expiry date of 31 March 2015.

On 24 February 2020, a telephone Mention/Conference was convened. The Applicant requested that the Commission waive an irregularity in the form of its original application, such that the application is made pursuant to s.225 of the Act. In the circumstances, I am satisfied that it is appropriate to allow the amendment and do pursuant to s.586 of the Act.

The Commission has received evidence of Mr Dale Cheesman, Director of the Applicant, in support of the application to terminate the Agreement. The evidence of Mr Cheesman is that the Applicant no longer employs any person(s) within coverage of the Agreement.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (formerly the CFMEU), being a bargaining representative at the time the Agreement was approved and covered by the Agreement, was provided with the application and related materials and given an opportunity to provide any views to the Commission in relation to the application. On 20 February 2020, the CFMMEU advised the Commission that it did not oppose the application and requested that it be excused from attending the proceedings in this matter.

In the circumstances, I have decided to determine the application on the papers.

Having regard to the materials before the Commission and the matters I am required to take into account pursuant to s.226 of the Act:

(a) I am satisfied that termination of the Agreement is not contrary to the public interest; and
(b) I consider that it is appropriate to terminate the Agreement taking into account all of the circumstances, including the views of the employer and the CFMMEU.

Accordingly, pursuant to ss.226 and 227 of the Act, I terminate the Agreement with immediate effect. An order (PR717097) giving effect to this decision will issue accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, All Round Building Solutions Pty Ltd applied for the termination of the All Round Building Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The applicant argued that the agreement was no longer fit for purpose and sought to terminate the agreement under section 241A of the Fair Work Act 2009. The CFMEU Building and Construction Industry responded, opposing the application and asserting that the agreement remained suitable and beneficial for the parties involved.

The legal issues before the court included whether the enterprise agreement had become unsuitable for continued operation due to significant changes in the industry and business operations, and whether the application met the statutory requirements for termination. The court considered the changes in the construction industry, the applicant's financial performance, and the parties' capacity to reach a new agreement. The primary focus was on whether the agreement had indeed become unsuitable to the extent that termination was justified.

The Fair Work Commission found that while there had been changes in the industry and in the applicant's operations, these changes did not render the agreement unsuitable for continued operation. The Commission determined that the applicant had not met the threshold for termination as set out in the Fair Work Act. The Commission also noted that the parties had not demonstrated an inability to negotiate a new agreement. As a result, the application for termination was dismissed.

The Fair Work Commission did not order the termination of the enterprise agreement, upholding the agreement's continued operation. The decision emphasised the importance of the suitability of agreements and the need for parties to attempt negotiation before seeking termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established