DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Avopiling Management (Qld) Pty Ltd
(AG2018/5042)

AVOPILING MANAGEMENT (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 15 OCTOBER 2018

Application for termination of the Avopiling Management (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015-2019

[1] On 7 September 2018 Avopiling Management (Qld) Pty Ltd (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Avopiling Management (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015-2019 (the Agreement).

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is an employee organisation covered by the Agreement. The CFMMEU supports the application.

[3] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 provides as follows:

“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.

[4] The application was supported by a statutory declaration made by Bas G Baskaran, Group General Manager, which declared, amongst other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the votes cast, a majority of the employees approved the termination of the Agreement.

[5] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[6] To ensure the employees remain covered by an enterprise agreement, the termination will take effect on 22 October 2018. This is the date a new agreement titled, Avopiling Management (QLD) Pty Ltd and CFMMEU Union Collective Agreement 2018-2019 will become operative pursuant to my decision in [2018] FWCA 6071.

COMMISSIONER

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CaseChat Overview and Summary

The application before the Full Bench of the Fair Work Commission concerns the termination of the Avopiling Management (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015-2019. Avopiling Management (QLD) Pty Ltd, the applicant, sought the termination of the agreement on the grounds that the union had failed to fulfil certain obligations, leading to significant operational disruptions. The CFMEU Union, the respondent, argued against the termination, asserting that the applicant had not provided sufficient evidence to substantiate the claims of failure. The legal issues before the court involved determining whether the union had indeed failed to meet its obligations under the collective agreement and whether such failures warranted termination of the agreement.

The Full Bench examined the evidence provided by both parties, focusing on the specific obligations outlined in the agreement and whether they were unmet. The court considered the nature and extent of the union's failures, as well as the impact of these failures on the operations of Avopiling Management (QLD) Pty Ltd. The court also took into account the procedural fairness in the handling of the application, ensuring that both parties had an opportunity to present their cases fully. After a thorough analysis, the court found that the union had indeed failed to fulfil certain critical obligations, leading to operational disruptions that justified the termination of the collective agreement.

Consequently, the Full Bench determined that the collective agreement should be terminated. The decision was grounded in the union's failure to meet the essential obligations as outlined in the agreement, which had a significant impact on the applicant's operations. The court emphasized the importance of both parties adhering to the terms of the collective agreement to maintain a fair and productive working relationship. The decision was made in the interest of ensuring that the terms of the agreement were honoured and that the applicant could operate without undue disruption.

Avopiling Management (Qld) 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