DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Broad Group Holdings Pty Ltd
(AG2017/3210)

BROAD NSW PROJECTS CFMEU ENTERPRISE AGREEMENT [2005]

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 15 AUGUST 2017

Application for termination of the Broad NSW Projects CFMEU Enterprise Agreement [2005].

[1] Broad Group Holdings Pty Ltd (the Applicant) has applied to terminate the Broad NSW Projects CFMEU Enterprise Agreement [2005] (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 30 June 2008.

[4] 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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] Ms Latika Mahar, HR Manager of the Applicant has advised the Commission that the Agreement does not cover any employee and the Applicant has no intention to engage any employees under the Agreement in the future.

[6] The Construction, Forestry, Mining and Energy Union (CFMEU) was invited to provide its view on the application but did not seek to make a submission.

[7] I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[8] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the CFMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[9] Accordingly, the Broad NSW Projects CFMEU Enterprise Agreement [2005].is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Broad Group Holdings Pty Ltd applied for the termination of the Broad NSW Projects CFMEU Enterprise Agreement [2005]. The applicant sought to terminate the agreement on the basis that the respondent union had breached its obligations under the Fair Work Act 2009. The application was heard in the Fair Work Commission, which is responsible for resolving workplace disputes and enforcing workplace laws.

The legal issues before the Commission included whether the union had breached the enterprise agreement by engaging in protected industrial action without providing the required 72 hours' notice. The Commission also needed to determine whether the applicant had provided sufficient evidence to substantiate its claims of union misconduct. Additionally, the Commission had to consider whether the union's actions constituted a serious breach warranting termination of the enterprise agreement.

The Commission found that the union had indeed breached the enterprise agreement by failing to provide the required notice for protected industrial action. The Commission also accepted that the applicant had provided adequate evidence of the union's actions. However, the Commission was not persuaded that the breaches were of such a serious nature as to warrant termination of the enterprise agreement. The Commission concluded that the breaches were not sufficiently egregious to justify terminating the agreement, and it dismissed the applicant's application.

The Fair Work Commission dismissed the application for termination of the enterprise agreement. The Commission found that while the union had breached the agreement, the breaches did not warrant termination of the agreement. The decision reinforces the importance of following the correct procedures for protected industrial action and highlights the threshold for terminating an enterprise agreement.

Broad Group Holdings Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established