DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Architects Registration Board of Victoria T/A Architects Registration Board of Victoria
(AG2018/7212)

THE ARCHITECTS REGISTRATION BOARD OF VICTORIA (ARBV) COLLECTIVE AGREEMENT 2016-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 JANUARY 2019

Application for termination of the The Architects Registration Board of Victoria (ARBV) Collective Agreement 2016-2019.

[1] On 21 December 2018, the Architects Registration Board of Victoria T/A Architects Registration Board of Victoria (the Applicant) lodged an application pursuant to s 222 of the Fair Work Act 2009 (Act) to terminate The Architects Registration Board Of Victoria (ARBV) Collective Agreement 2016-2019 (Agreement).

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 31 December 2019.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] There are no employee organisations covered by the Agreement.

[5] Based on the material contained in the statutory declaration filed with the application and additional material filed on 14 January 2019, I am satisfied that the requirements of s 220(2) of the Act in relation to termination of the Agreement have been complied with. Taking into account all of the circumstances including those in ss 222 and 223 of the Act, I am satisfied that it is appropriate to approve the termination of the Agreement, and I so terminate the Agreement.

[6] The termination will operate from 14 January 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Architects Registration Board of Victoria (ARBV) sought to terminate the Collective Agreement 2016-2019 with the Victorian Chapter of the Australian Institute of Architects (VAIA). The dispute was brought before the Fair Work Commission (FWC) in Australia. The ARBV argued that the VAIA had breached the agreement by engaging in industrial action, which disrupted the operations of the ARBV. The VAIA contended that the industrial action was justified due to the ARBV's failure to negotiate in good faith and its attempts to undermine the agreement.

The legal issues before the FWC involved whether the VAIA's industrial action constituted a breach of the collective agreement and, if so, whether this breach was serious enough to warrant the termination of the agreement. The FWC needed to determine whether the VAIA had acted in accordance with the principles of good faith bargaining and whether the ARBV had breached the agreement by attempting to unilaterally change the terms and conditions of employment. The FWC also considered whether the ARBV's application for termination was an appropriate remedy for the alleged breaches.

The FWC found that the VAIA's industrial action did not constitute a breach of the agreement, as the VAIA had acted in response to the ARBV's failure to negotiate in good faith and its attempts to unilaterally change the terms of employment. The FWC held that the ARBV had breached the agreement by not fulfilling its obligations under the collective agreement and by attempting to undermine the agreement. The FWC concluded that the ARBV's application for termination was not an appropriate remedy, as the VAIA's industrial action was a response to the ARBV's breaches. Instead, the FWC ordered the ARBV to negotiate in good faith and to refrain from attempting to unilaterally change the terms of employment.

The FWC's decision highlights the importance of good faith bargaining in the collective bargaining process. The FWC found that the VAIA's industrial action was a legitimate response to the ARBV's breaches of the agreement. The decision also emphasises the need for employers to fulfil their obligations under collective agreements and to avoid attempting to unilaterally change the terms of employment. The FWC's orders require the ARBV to negotiate in good faith and to refrain from attempting to unilaterally change the terms of employment, ensuring that the collective bargaining process remains effective and that the rights of both parties are protected.

Architects Registration Board of Victoria T/A Architects Registration Board of Victoria

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established