[2020] FWCA 1100

The attached document wholly replaces the document previously issued with the code [2020] FWC 1066 on 27 February 2020 to correct document referencing.

Associate to Deputy President Mansini

28 February 2020.

[2020] FWCA 1100

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.

[1] 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).

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

[3] 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.

[4] 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.

[5] 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.

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

[7] 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.

[8] 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

The applicant, All Round Building Solutions Pty Ltd, sought termination of the All Round Building Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application. The dispute was heard by the Fair Work Commission, specifically the Full Bench, in a case involving the interpretation and application of the Fair Work Act 2009.

The central legal issues revolved around the validity of the applicant's grounds for termination of the enterprise agreement. The applicant argued that a significant change in business circumstances warranted termination, while the respondent contended that the change did not meet the statutory criteria. The court was required to determine whether the change was substantial and if it had a significant adverse effect on the applicant's business.

The Full Bench considered the evidence and arguments presented by both parties. The court found that while the applicant had experienced a decrease in profitability, it had not demonstrated that this change was due to external factors beyond its control or that it had a significant adverse effect on the business as a whole. The court also noted that the applicant had not provided sufficient evidence to support its claim that the change in circumstances was fundamental and not merely a temporary setback. Consequently, the application for termination was dismissed. The Full Bench held that the applicant had not met the burden of proof required under the Fair Work Act.

The final orders of the court were that the application for termination of the enterprise agreement was dismissed, and no order for costs was made. The agreement remained in effect, and the parties were required to continue to adhere to its terms until it expired or was otherwise terminated under the Act.

All Round Building Solutions 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