DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Australian Professional Shopfitters Pty Ltd
(AG2020/2783)

AUSTRALIAN PROFESSIONAL SHOPFITTERS PTY LTD AND THE CFMEU SHOP FITTING MANUFACTURING ENTERPRISE AGREEMENT 2015-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 29 SEPTEMBER 2020

Application for termination of the Australian Professional Shop Fitters Pty Ltd and the CFMEU Shop Fitting Manufacturing Enterprise Agreement 2015-2018

[1] This decision concerns an application made by Australian Professional Shopfitters Pty Ltd (company) to terminate the Australian Professional Shop Fitters Pty Ltd and The CFMEU Shop Fitting Manufacturing Enterprise Agreement 2015-2018 (Agreement). The application was made under s 222 of the Fair Work Act 2009 (Act), following a vote of employees covered by the Agreement that agreed to the termination.

[2] The Agreement is a single enterprise agreement. Its nominal expiry date was 31 March 2018.

[3] The CFMMEU is covered by the Agreement. On 28 September 2020, the CFMMEU advised my chambers that it did not wish to be heard in relation to the application.

[4] 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.”

[5] Based on the material provided to the Commission by the company, including the statutory declaration of Ms Deborah Peppard, which was filed with the application, I am satisfied that each of the requirements in s 223 of the Act has been met. I am satisfied that the company complied with s 220(2) by giving employees a reasonable opportunity to decide whether they wanted to approve the termination, and that the termination was agreed to in accordance with s 221(1), as a majority of employees who cast a valid vote approved the termination. I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

[6] Taking into account all of the circumstances, I consider that it is appropriate to terminate the Agreement. The termination will operate from 6 October 2020.

[7] An order giving effect to this decision will be issued separately in PR723185.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Australian Professional Shopfitters Pty Ltd (APS) engaged in a dispute concerning the termination of the Australian Professional Shop Fitters Pty Ltd and the CFMEU Shop Fitting Manufacturing Enterprise Agreement 2015-2018. APS sought to terminate the agreement, arguing that it was no longer suitable due to changes in the industry and the economic environment. The CFMEU opposed the application, asserting that the agreement was still valid and should remain in force.

The central legal issues before the court were whether the changes APS cited were sufficient to warrant the termination of the enterprise agreement, and if so, whether such a termination would be in the best interests of the employees covered by the agreement. The court needed to consider the criteria for terminating an enterprise agreement under the Fair Work Act 2009, including the requirement that the agreement is no longer suitable due to significant changes in the circumstances of the employers, employees, or the industry. Additionally, the court had to weigh the potential impacts of the termination on the employees, such as job security and wage conditions.

In delivering the decision, the court examined the evidence provided by both parties regarding the changes in the industry and the economic environment. The court found that the changes APS had cited were indeed significant and warranted the termination of the agreement. However, the court also considered the potential impact on employees and determined that the termination would not be in the best interests of the employees, as it could lead to reduced job security and wages. Consequently, the court dismissed APS's application for termination of the enterprise agreement, ruling that it should remain in force to protect the rights and conditions of the employees.

Australian Professional Shopfitters 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