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;

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

Printed by authority of the Commonwealth Government Printer

In the recent case, Bicon (QLD) Pty Ltd sought to terminate their existing collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was heard by the Fair Work Commission, Australia's industrial relations tribunal. The crux of the dispute lay in the interpretation of the terms of the collective agreement and the procedural fairness afforded to the parties during the termination process.

The central legal issues revolved around whether the company had followed the correct procedures to terminate the agreement and whether there was a legitimate basis for doing so. The Commission had to consider the procedural fairness of the application and whether the union had been given adequate opportunity to respond to the allegations against the agreement. Additionally, the court needed to determine whether the termination was in line with the statutory framework governing industrial relations in Australia.

The Fair Work Commission found that Bicon (QLD) Pty Ltd had not followed the required procedures to terminate the collective agreement, and thus, the application was dismissed. The Commission emphasised the importance of procedural fairness in such disputes, highlighting that the union had not been afforded the opportunity to adequately respond to the allegations. Furthermore, the Commission found that the company's actions did not constitute a legitimate basis for terminating the agreement, as there was insufficient evidence to support the claims made.

As a result of the Commission's decision, the application for termination was dismissed, and the collective agreement between Bicon (QLD) Pty Ltd and the CFMEU remained in effect. This case serves as a reminder to employers of the importance of adhering to procedural fairness and statutory requirements when seeking to terminate a collective agreement.

Bicon Qld

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established