Application by Rangedale Solutions Pty Ltd

[2021] FWCA 4050

[2021] FWCA 4050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Application by Rangedale Solutions Pty Ltd
(AG2021/5703)

RANGEDALE SOLUTIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 12 JULY 2021

Application for termination of the Rangedale Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2015.

[1] On 21 June 2021, Rangedale Solutions Pty Ltd (Rangedale Solutions) filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Rangedale Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2015 (the Agreement). The Agreement is a single enterprise agreement which nominally expired on 30 June 2016. I note that the Agreement covers an employee organisation that was formerly the Construction, Forestry, Mining and Energy Union.

[2] Accompanying the Application was a Form F24C statutory declaration made by Neil Kermeen, Managing Director on 21 June 2021 in which it is declared there are no employees covered by the Agreement, that Rangedale Solutions is an inactive company and that it will not be providing any services in the future. Rangedale Solutions advised that it had served the Application and statutory declaration on the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU).

[3] I issued Directions on 24 June 2021 requiring the CFMMEU to advise the Commission whether or not it opposes the application of Rangedale Solutions to terminate the Agreement.

[4] On 1 July 2021, in an email to my Chambers, Ms Emma Barnes-Whelan, Lawyer, Construction and General Division of the CFMMEU confirmed that it does not oppose the application.

Legislation

[5] The Act relevantly provides 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

Section 225

[6] An employer covered by an agreement may apply under s.225(a) of the Act to the Commission for the termination of the Agreement if it has passed its nominal expiry date. As noted above, the Agreement nominally expired over four years ago. Further, Mr Kermeen declared that Rangedale Solutions is the employer covered by the Agreement. As such, I am satisfied that Rangedale Solutions has standing to bring the Application under s.225(a) of the Act.

Section 226

[7] In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement (s.226(a)) and it is appropriate to do so, taking into account all the circumstances (s.226(b)). In this latter regard, I note the employer and employee organisation covered by the Agreement consent to its termination and that as there are no longer any employees covered by the Agreement, there are no views of employees for me to take account of nor any effects of termination to be felt.

[8] Given my conclusions above, I must terminate the Agreement. In accordance with s.227 of the Act, the termination will take effect from 12 July 2021.

DEPUTY PRESIDENT

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