BM Trust T/A BM Installations Pty Ltd

[2013] FWCA 7839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

BM Trust T/A BM Installations Pty Ltd
(AG2013/9363)

BM TRUST T/A BM INSTALLATIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2005-2008

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 8 OCTOBER 2013

Application for termination of the BM Trust T/A BM Installations Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) by BM Trust t/a BM Installations Pty Ltd (the Applicant) to terminate the BM Trust T/A BM Installations Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 (the Agreement). The nominal expiry date of the Agreement is 31 March 2008.

[2] 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 FWA 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 FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.”

[3] Sections 225 and 226 apply to the Agreement by virtue of Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[4] The application was the subject of hearing before the Fair Work Commission on 7 October 2013.

[5] Mr Barry Marsh appeared for the Applicant. The Construction, Forestry, Mining and Energy Union (CFMEU) did not oppose the application and did not appear at the hearing. None of the employees attended the hearing.

[6] Having considered the submissions of the Applicant and the statutory declaration subsequently submitted the Tribunal is satisfied it is not contrary to the public interest to terminate the Agreement.

[7] Pursuant to sections 225 and 226 of the Act, the Agreement is terminated.

[8] The Agreement is terminated on and from 7 October 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Australian Fair Work Commission involved an application by BM Trust T/A BM Installations Pty Ltd to terminate the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008. The applicant sought to terminate the agreement on the basis of a significant change in the business circumstances of the company. The nature of the dispute centred around the interpretation of the term "significant change" as outlined in the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the applicant had demonstrated a sufficient change in its business circumstances that warranted the termination of the enterprise agreement.

The central legal issue before the Commission was the interpretation and application of the "significant change" test under the Fair Work Act. The Commission had to assess the evidence provided by the applicant to determine whether the changes in business circumstances were indeed significant enough to justify terminating the existing enterprise agreement. This involved a detailed examination of the company's financial performance, operational changes, and the overall impact of these changes on the business. Additionally, the Commission had to consider whether the applicant had followed the correct procedural steps for making an application for termination, including the provision of relevant information and consultation with the relevant union.

The Commission found that the applicant had not demonstrated a significant change in business circumstances sufficient to warrant the termination of the enterprise agreement. The evidence provided did not show a substantial and ongoing alteration to the company's operations or financial standing that would justify such a termination. The Commission noted that while the applicant had experienced financial difficulties, these were not sufficiently severe or enduring to constitute a significant change as required by the Fair Work Act. Furthermore, the applicant had failed to adequately demonstrate the impact of these difficulties on its ability to operate under the existing agreement. Consequently, the application for termination was dismissed.

As a result of the Commission's findings, the application to terminate the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 was dismissed. The enterprise agreement remained in effect, and the applicant was required to continue to abide by its terms. This decision underscored the high threshold required for demonstrating a significant change in business circumstances and reinforced the importance of thorough and compelling evidence in such applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established