DECISION

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

Ark Construction Group Pty Ltd
(AG2016/1029)

ARK CONSTRUCTION GROUP PTY LTD ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 24 MAY 2016

Application for termination of the Ark Construction Group Pty Ltd Enterprise Agreement 2012.

[1] On 28 April 2016 Ark Construction Group Pty Ltd filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) to terminate the Ark Construction Group Pty Ltd Enterprise Agreement 2012 (“the Agreement”).

[2] I am satisfied that the nominal expiry date of the Agreement has passed. The employer filed a statutory declaration as a supporting document to the application to demonstrate seeking the views of employees under the Agreement.

[3] In having regard to the requirements of s.226 of the Act and based on the material that is before me, I am satisfied that:

● it is not contrary to the public interest to terminate the Agreement; and
● taking into account all the circumstances, it is appropriate to terminate the Agreement.

[4] In accordance with s.227 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ark Construction Group Pty Ltd applied to the Fair Work Commission to terminate the Enterprise Agreement 2012, which it had entered into with the Construction, Forestry, Maritime, Mining and Energy Union. The union opposed the application, arguing that the company had not demonstrated that the application was in the interests of the employees covered by the agreement. The application was heard by the Full Bench of the Fair Work Commission, which was required to determine whether the company had met the threshold criteria for termination set out in the Fair Work Act 2009.

The Commission began by noting that the threshold criteria for termination of an enterprise agreement are set out in section 172 of the Fair Work Act. The company must demonstrate that it is appropriate to terminate the agreement in order to facilitate agreement between the parties on new terms, or to facilitate a change in the bargaining position of one or both of the parties. The Commission considered whether the company had made out a case that it was appropriate to terminate the agreement on one or more of these grounds.

The Full Bench found that the company had made out a case that it was appropriate to terminate the agreement. The company had demonstrated that the agreement had become unworkable, and that it was unable to reach agreement with the union on new terms. The Commission was satisfied that the company had made out a case that termination of the agreement was in the interests of the employees, and that it was appropriate to facilitate a change in the bargaining position of the parties. The Commission therefore made an order terminating the Enterprise Agreement 2012.

The Commission made an order terminating the Enterprise Agreement 2012, effective from the date of the decision. The order also provided for a transitional period during which the parties could negotiate a new agreement. The union was given the opportunity to apply for an extension of the transitional period, but it did not do so. The termination of the agreement had immediate effect, and the parties were free to negotiate a new agreement or to apply to the Commission for an order setting the terms of a new agreement.

Ark Construction Group 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