Austral Precast (VIC) Pty Ltd

[2019] FWCA 8359

[2019] FWCA 8359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Austral Precast (VIC) Pty Ltd
(AG2019/3400)

AUSTRAL PRECAST (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) PRECAST PANEL ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 10 DECEMBER 2019

Application for termination of an enterprise agreement

[1] Austral Precast (Vic) Pty Ltd (Austral Precast) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Austral Precast (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Precast Panel Enterprise Agreement 2016-2018 (Agreement). The Agreement applies in the State of Victoria and covers Austral Precast, employees of Austral Precast “who are engaged in the off-site production and manufacture of precast concrete structural components, their distribution or related tasks”, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (see clauses 2 and 4). The Agreement reached its nominal expiry date on 30 June 2018.

[2] 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.”

[3] 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.”

[4] I listed the matter for mention on 7 October 2019. At the mention, the CFMMEU objected to the application. I issued directions for the filing of submissions.

[5] On 12 November 2019 the CFMMEU sought an order from the Commission that Austral Precast produce any documents that disclosed an intention or plan on the part of the company or its related entities to continue or recommence operations in Victoria. I granted the order on 14 November 2019. Austral Precast then sought to have the order set aside.

[6] On 15 November 2019 I conducted a conference, during which Austral Precast agreed to provide to the CFMMEU a narrower class of documents, namely those created by managerial employees or directors of the company, Austral Precast Holdings Pty Ltd or any Victorian subsidiaries, that disclosed any extant plan for Austral Precast to recommence work in Victoria.

[7] On 22 November 2019, Austral Precast advised the CFMMEU and the Commission that it had conducted searches and identified no documents of the relevant kind. On 2 December 2019, the CFMMEU advised my chambers and the company that it no longer pressed its objection to the application. Austral Precast then requested that the Commission determine the application on the papers.

[8] The application, the supporting statutory declaration of the company’s industrial relations manager, Mr Kluktewicz, and the company’s submissions disclose the following facts. The company’s Dandenong site ceased operations on 17 October 2017. The employment of all production employees terminated on that date for reason of redundancy. Yard employees were made redundant effective from 15 January 2018. Austral Precast has not engaged any employees at the Dandenong site since 15 January 2018, nor has it engaged any other employees elsewhere in Victoria since that date. The Dandenong site is no longer leased by Austral Precast.

[9] The company does not intend to recommence operations at the Dandenong site or anywhere else in Victoria, and has confirmed that it has no documents evidencing any extant plan to recommence work in Victoria.

[10] Turning then to the relevant statutory provisions, I note that the Agreement has passed its nominal expiry date, and that a valid application has been made under s 225 by the employer covered by the Agreement.

[11] Based on the application, the statutory declaration of Mr Kluktewicz, the company’s submissions, and also the exchange between the company and the union described above, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[12] Further, taking into account all of the circumstances, including those in s 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises considerations that might militate against termination of the Agreement. The company’s view is that the Agreement should be terminated. As stated in the employer’s declaration, there are no employees covered by the Agreement. The CFMMEU has been heard and no longer opposes the application to terminate the Agreement.

[13] It follows from my conclusions that the Commission must terminate the Agreement and I do so.

[14] The termination will operate from 17 December 2019.

DEPUTY PRESIDENT

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