Bitu-Mill Services Pty Ltd

[2014] FWC 4828

[2014] FWC 4828

FAIR WORK COMMISSION

DECISION

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

Bitu-Mill Services Pty Ltd
(AG2014/6733)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 18 JULY 2014

Application for termination of the Bitu-Mill Services Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2008-2011 after its nominal expiry date –agreement terminated.

[1] This is an application by Bitu-Mill Services Pty Ltd (BMS) under s.225 of the Fair Work Act 2009 (the Act) to terminate the Bitu-Mill Services Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2008-2011 1 (the 2008 Agreement).

[2] BMS is a company specialising in road maintenance, rehabilitation and civil construction works within the road construction sector.

[3] The 2008Agreement was made under s.185 of the Act and covered the Construction, Forestry, Mining and Energy Union 2 (the CFMEU). The nominal expiry date of the 2008Agreement was 31 March 2011.3

[4] Sections 225 and 226 of the Act are relevant to the application and provide 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.

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.”

[5] The application to terminate the 2008 Agreement is based on the proposition that it has no work to do because the employees who were covered by it are now covered by three agreements made in 2012 in respect of three separate segments of the BMS workforce, each of which operated from 5 November 2012.

● The Bitu-Mill Services Pty Ltd (Asphalt Division) A.W.U Victoria Asphalt Agreement 2012 to 2015; 4

● The Civil and Road Rehabilitation and Maintenance Metro and Rural Divisions, A.W.U Victoria Maintenance Agreement 2012 to 2015; 5 and

● The Bitu-Mill Pty Ltd (Profiling Division) A.W.U Victoria Asphalt Agreement 2012 to 2015 6(collectively the 2012 Agreements).

[6] Section 58 of the Act provides that only one enterprise agreement can apply to an employee at a particular time (s.58(1)). Section 58(2) provides a general rule (applicable other than in circumstances of a single-enterprise agreement replacing a multi-enterprise agreement) that:

“If:

(a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

(c) subsection (3) (which deals with a single-enterprise agreement replacing a multi-enterprise agreement) does not apply;

then:

(d) if the earlier agreement has not passed its nominal expiry date:

(i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e) if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.”

[7] In the circumstances of this matter the 2012 Agreements cover the employees to whom it applies in relation to the same employment as the 2008Agreement. As from the time the 2012 Agreements came in to operation – 5 November 2012 – which was after the nominal expiry date of the 2008 Agreement – 31 March 2011 – s.58 of the Act has the effect that the 2008Agreement ceased to apply to the employees when the 2012 Agreements came into operation, and can never so apply again.

[8] Given the operation and effect of s.58 of the Act, the 2008Agreement does not apply to the employees to whom the 2012 Agreements apply. The 2008Agreement has no effect in relation to those employees. There is no need or utility to terminate the 2008Agreement, unless it applies to other employees to whom the 2012 Agreements do not apply.

[9] BMS contends that it has not and does not intend to employ persons within the scope of the 2008 Agreement other than those to whom the 2012 Agreements apply. Given the operation of s.58 of the Act, the only legal effect of terminating the 2008Agreement would be that it would not apply in respect of any future employees engaged by BMS within its scope, to whom the 2012 Agreements do not apply. This would have no current practical effect and, given the intention of BMS in respect of the employment of such employees would have no future practical effect.

[10] Nonetheless given an application for the termination of the 2008Agreement under s.225 of the Act has been made by BMS, and the circumstances in which the Fair Work Commission must terminate an agreement which has passed its nominal expiry date in s.226, I will terminate the 2008Agreement. In this regard, I am satisfied that it is not contrary to the public interest to do so. Further, there are no employees covered by the 2008 Agreement and the organisation covered by it, the CFMEU, when notified of a conference/hearing advised that it did not wish to make any submissions on the application. I am satisfied that there will be no likely effect of the termination of the 2008 Agreement on any employee or the CFMEU.

[11] Accordingly, I will terminate the Bitu-Mill Services Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2008-2011. The termination will operate from the date of this decision. An order has been made in PR553288 giving effect to this decision.

SENIOR DEPUTY PRESIDENT

 1   AE878323.

 2   [2010] FWAA 4308, at para 3.

 3   [2010] FWAA 4308, at para 4.

 4   AE897871.

 5   AE897876.

 6   AE897874.

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<Price code A, PR553287>