Bicon Qld

[2021] FWCA 380

[2021] FWCA 380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Bicon Qld
(AG2021/110)

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

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 27 JANUARY 2021

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

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Bicon Qld (the Applicant) to terminate the Bicon (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015-2019 (the Agreement).

[2] The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 2 July 2019.

[3] Sections 225 and 226 of the Act provide:

“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.

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] Mr David Stockley, Director for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Stockley also provided a further signed statement in response to directions issued by chambers. Mr Stockley stated that there are currently no employees covered by the Agreement.

[5] It was submitted on behalf of the Applicant, that the termination of the Agreement would not have any effect on any employees, as there are no employees covered by the Agreement, nor will there be in future. Mr Stockley indicated that they would be winding up operations.

[6] The Construction, Forestry, Mining and Energy Union (CFMEU), being a party to the application, was provided with a copy of the application and Mr Stockley’s statement. The CFMEU was contacted requesting that they advise whether they supported the termination of the Agreement or opposed the termination. The CFMEU confirmed in writing that they did not seek to be heard in relation to the application.

[7] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 27 January 2020.

[8] I Order accordingly.

COMMISSIONER

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