Austar Investments (Aust) Pty Ltd

[2020] FWCA 5086

[2020] FWCA 5086

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Austar Investments (Aust) Pty Ltd
(AG2020/2723)

AUSTAR INVESTMENTS (AUST) P/L T/AS DONGGA’S PLASTER AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 22 SEPTEMBER 2020

Application for termination of the Austar Investments (Aust) P/L T/as Dongga’s Plaster and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005.

[1] On 10 September 2020 Austar Investments (Aust) Pty Ltd (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Austar Investments (Aust) P/L T/as Dongga’s Plaster and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005 (Agreement). The Agreement covers the Applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and employees of the employer who are eligible to be members of the CFMMEU as specified in clause 4 of the Agreement. The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Fair Work Act 2009 (Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 225 of the Act provides:

“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.”

[4] Section 226 of the Act provides:

“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.”

[5] In support of the application, Mr G Dong of the Applicant provided a declaration dated 10 September 2020. The declaration states, inter alia, that the Applicant has ceased trading and there are no employees covered by the Agreement. It is further declared that termination of the Agreement will have no effect on the parties covered by the Agreement.

[6] As mentioned above, the CFMMEU is an organisation which is covered by the Agreement. In correspondence to my Chambers on 22 September 2020, the CFMMEU advised that it did not wish to be heard in relation to this application.

[7] Based on the material contained in the employer’s declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii) of the Act, I consider that it is appropriate to terminate the Agreement. There are no other circumstances apparent to me which would militate against this conclusion. As the matters in s.226(a) and (b) are satisfied, the Agreement must be terminated and I terminate the Agreement.

[8] The termination will operate from 22 September 2020.

DEPUTY PRESIDENT

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