Bayview Balustrading Australia Pty Ltd T/A Bayview Balustrading Australia Pty Ltd

[2023] FWCA 1709

[2023] FWCA 1709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Bayview Balustrading Australia Pty Ltd T/A Bayview Balustrading Australia Pty Ltd

(AG2023/1466)

BAYVIEW BALUSTRADING AUSTRALIA PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 13 JUNE 2023

Application for termination of the Bayview Balustrading Australia Pty Ltd and The CFMEU Building and Construction Industry Enterprise Agreement 2011-2015

1. Bayview Balustrading Australia Pty Ltd T/A Bayview Balustrading Australia Pty Ltd (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) for approval to terminate the Bayview Balustrading Australia Pty Ltd and The CFMEU Building and Construction Industry Enterprise Agreement 2011-2015[1] (the Agreement). The Applicant is the employer covered by the Agreement.

1. The Agreement is a single enterprise agreement and was approved by the Commission on 13 October 2011. It reached its nominal expiry date on 31 March 2015.

1. The relevant provisions of the Act are as follows:

“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.

1. Section 226 of the Act provides:

“226  Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)  the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)  all of the following apply:

(i)  the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)  the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)  if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)  However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)  This subsection covers a termination of the employment of an employee:

(a)  at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)  because of the insolvency or bankruptcy of the employer.

(3)  In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)  the employees (unless there are no employees covered by the agreement);

(b)  each employer;

(c)  each employee organisation (if any).

Note:          The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)  In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)  whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)  whether bargaining for the proposed enterprise agreement is occurring; and

(c)  whether the termination of the existing agreement would adversely affect the bargaining positionof the employees that will be covered by the proposed enterprise agreement.

(5)  In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. The Application was supported by a Statutory Declaration made by Mr Nick Fraraccio of the Applicant on 16 May 2023.

1. Mr Fraraccio declared, among other things, that the Agreement was entered into by the Applicant in order to complete a short-term project on a worksite of Hickory Constructions (VIC) Pty Ltd (Hickory Constructions). Mr Fraraccio further declared that the work specified in the Agreement was not performed by the Applicant, before starting and after completion of project. He submits that the Applicant does not currently and does not intend in the future to complete work of the nature described in the Agreement, therefore no employee is currently or will ever be covered by this Agreement.

1. On Friday 9 June 2023, my chambers listed this matter for a conference for 13 June 2023.

1. Later that day, my chambers received an email from the CFMMEU, the union covered by the Agreement, advising that none of their members are covered by the Agreement and they raise no concerns around termination of the Agreement. They also requested that they therefore be excused from attending the conference. They also advised that they do not wish to contest the termination of the Agreement.

1. On 13 June 2023, Mr Fraraccio attended the conference for the Applicant accompanied by a Representative for the Applicant. The CFMMEU did not attend the conference.

1. During the conference, Mr Fraraccio and his representative confirmed Mr Fraraccio’s declaration that the Applicant has no employees covered by the Agreement and no longer intends to do work of the nature specified in the Agreement.

1. Based on the materials that are before the Commission, including Mr Fraraccio’s statutory declaration, I am satisfied that the termination of the Agreement has not been contested and the requirements of s.226 of the Act have been met and the matter can be determined on the papers. In particular, I am satisfied that the Agreement does not, and is not likely to cover any employees and the termination of the Agreement will not affect any employee of the employer that is excluded from the operation of the Agreement. I find that it is appropriate to approve the termination of the Agreement taking into account section 226 of the Act including the views of the employee organisation covered by the Agreement.

1. Accordingly, the termination will operate from 13 June 2023.

COMMISSIONER

[1] AE888816.

Printed by authority of the Commonwealth Government Printer

<AE888816  PR763015>