Allied Concrete Cutting & Drilling Pty Ltd

[2017] FWCA 3651

[2017] FWCA 3651

FAIR WORK COMMISSION

DECISION

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

Allied Concrete Cutting & Drilling Pty Ltd
(AG2017/2039)

ALLIED CONCRETE CUTTING & DRILLING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 11 JULY 2017

Application for termination of the Allied Concrete Cutting & Drilling Pty Ltd and CFMEU Union Collective Agreement 2011-2015.

[1] On 6 June 2017 Allied Concrete Cutting & Drilling Pty Ltd (the Company) applied pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Allied Concrete Cutting & Drilling Pty Ltd and CFMEU Union Collective Agreement 2011-2015 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration in support of the termination, declared by Mr Justin Roth, Director of the Company.

[3] The Company declared it is currently in the process of negotiating a new enterprise agreement and that if the Agreement is terminated, it will preserve the employees’ existing rate of pay until such time as a new agreement is approved by the Commission.

[4] Communication from my Chambers to the Company was issued, directing the Company to provide a copy of the communication to each of the ten employees covered by the Agreement. The communication invited the employees to express their views regarding the application to my Chambers and provided an email address. I am satisfied the Company issued the email to the employees. No correspondence from the employees was received.

[5] In addition, the Company undertook a vote of the ten employees as to whether they approved of the termination of the Agreement. All ten employees voted in support of termination of the Agreement.

[6] The Construction, Forestry, Mining and Energy Union (CFMEU) are an employee organisation covered by the Agreement. Communication was issued to the CFMEU seeking its views in relation to the application. The CFMEU did not provide a response.

The legislation

[7] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which are as follows:

“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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[8] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a) I am satisfied the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[9] With regard to the circumstances of the employees following termination of the Agreement, the Company will preserve the existing rates of pay until such time as a new enterprise agreement is approved. The Building and Construction General On-site Award 2010 will apply to all other conditions. In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[10] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[11] The termination will take effect from today, 11 July 2017.

COMMISSIONER

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