Australian Concrete Solutions Pty Ltd as trustee for the Australasian Concrete Solutions Unit Trust T/A Australasian Concrete Solutions

[2017] FWCA 4790

[2017] FWCA 4790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Australian Concrete Solutions Pty Ltd as trustee for the Australasian Concrete Solutions Unit Trust T/A Australasian Concrete Solutions
(AG2017/4005)

AUSTRALASIAN CONCRETE SOLUTIONS UNIT TRUST T/AS AUSTRALASIAN CONCRETE SOLUTIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 14 SEPTEMBER 2017

Application for termination of the Australasian Concrete Solutions Unit Trust T/As Australasian Concrete Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] Australasian Concrete Solutions has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Australasian Concrete Solutions Unit Trust T/As Australasian Concrete Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (the Agreement).

[2] The Agreement has passed its nominal expiry date.

[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] The Construction, Forestry, Mining and Energy Union (the CFMEU) is an organisation which is covered by the Agreement.

[6] A statutory declaration was received in the form of an F24C from Mr Ben Pengelly, company director, signed on 5 September 2017. In this statutory declaration, Mr Pengelly advised that terminating the Agreement:

a) would increase employment opportunities;

b) would increase community benefit;

c) would eliminate any non-compliance with the Code for the Tendering and Performance of Building Work 2016 (the Building Code 2016);

d) would promote the objects of the Fair Work Act 2009.

[7] A further Statutory Declaration was received from Mr Blair Cummins, an employee, signed 5 September 2017 which supported the application.

[8] The matter was listed for an attendance hearing on 13 September 2017.

[9] On 11 September 2017, Mr Pengelly emailed my chambers a copy of a meeting attendance confirmation and a copy of a guarantee to maintain existing employees’ terms and condition of employment sighted and signed by the staff. He also advised:

“In regards to the request whether staff who were made redundant and subsequently reemployed would retain their existing conditions Australasian Concrete Solutions has committed to both the staff and FWC that if this does happen then we will honour our guarantee to staff and pre redundant conditions would apply.”

[10] On 12 September 2017, the CFMEU advised they did not seek to be heard in this matter.

[11] The attendance hearing for 13 September 2017 was cancelled and the matter was listed for e-hearing on the same day.

[12] Based on the uncontested evidence before the Commission, I am satisfied that termination of the Agreement is not contrary to public interest. 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.

[13] The termination will operate from 14 September 2017.

DEPUTY PRESIDENT

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