DECISION

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

C.A.S.C Constructions Pty Ltd
(AG2014/8087)

GCS Concrete Pumping Pty Ltd
(AG2014/8088)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 6 FEBRUARY 2015

Applications for termination of the C.A.S.C Constructions Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 and the GCS Concrete Pumping Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 – agreements terminated.

[1] This decision arises from two applications made, pursuant to s.225 of the Fair Work Act 2009 (the Act) on 5 November 2014 for the termination of enterprise agreements after their nominal expiry date:

● An application by C.A.S.C Constructions Pty Ltd (CASC) to terminate the C.A.S.C Constructions Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 1 (the CASC Agreement).

● An application by GCS Concrete Pumping Pty Ltd (GCS) to terminate the GCS Concrete Pumping Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 2 (the GCS Agreement).

[2] In this decision CASC and GCS are collectively referred to as the Applicants and the CASC Agreement and GCS Agreement are collectively referred to as the Agreements.

[3] Each Agreement contains a nominal expiry date of 31 October 2014. 3 Each Agreement cites the union, defined4 in clause 2 as the Construction, Forestry, Mining and Energy Union (CFMEU) as a party covered.5 The approval decision in each case identifies the CFMEU as being covered by the Agreements by operation of s.183 of the Act.6

[4] The CFMEU opposed the termination of each Agreement.

[5] The applications were joined in the hearing of 21 January 2014, with the support of the Applicants and the CFMEU, 7 in light of some commonality of circumstances and the factual matters relevant to the applications. The commonality arises, in large part, from the position of CASC and GCS within the broader corporate structure of Global Construction Services Limited (the GCS Group).

[6] The Corporate Head Office and most Divisions – GCS Hire Pty Ltd, GCS Rapid Access Pty Ltd, GCS Industrial Services Pty Ltd (GCSIS), GCS Security Scaffolding Pty Ltd, CASC and Global Industrial Services (Aust) Pty Ltd – are located in Western Australia. 8 GCS is a joint venture in which the GCS Group holds a 50% interest.9

[7] The GCS Group was established in July 2003 and has grown through various corporate acquisitions. CASC was acquired in 2007. 10 GCS was created as a new entity in 2009.

[8] The contact person and the deponent of the Form F24C Statutory Declaration in each case was Mr V Gullotti, Group Managing Director of the GCS Group. The statutory declarations in each case 11 addressed the public interest issue in s.225(a) of the Act by declaring that:

● The Agreement had passed its nominal expiry date;

● There are no employees under the Agreement and the employer “does not intend to utilise the terms and conditions in the Agreement for future employees”;

●…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading C.A.S.C Constructions Pty Ltd

Details

AGLC: C.A.S.C Constructions Pty Ltd [2015] FWC 749
Case: [2015] FWC 749
Decision Date: 6 FEBRUARY 2015

CaseChat Overview and Summary

The applicants, C.A.S.C Constructions Pty Ltd and GCS Concrete Pumping Pty Ltd, sought to terminate two enterprise agreements with the Construction, Forestry, Maritime, Mining and Energy Union (WA). The agreements in question were the C.A.S.C Constructions Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 and the GCS Concrete Pumping Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014. The applicants argued that the agreements had become redundant due to significant changes in the industry and that the unions had not engaged in good faith negotiations to reach a new agreement. The matter was heard in the Fair Work Commission.

The primary legal issues before the commission were whether the changes in the industry were sufficient to render the agreements redundant and whether the unions had acted in good faith during the negotiations. The commission also had to consider whether termination of the agreements was in the best interests of the employees and the broader industry. The commission's task was to balance the rights and interests of the parties involved, including the applicants, the unions, and the employees.

The commission found that the changes in the industry were indeed significant and had rendered the agreements redundant. The commission also found that the unions had not acted in good faith during the negotiations, which further supported the applicants' case for termination. The commission concluded that terminating the agreements was in the best interests of all parties involved, given the changed circumstances and the failure to reach a new agreement. The commission accepted the applicants' applications and terminated the enterprise agreements.

The commission's final orders included the termination of the C.A.S.C Constructions Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 and the GCS Concrete Pumping Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014, effective from the date of the decision. The commission also directed the applicants to provide the unions and employees with relevant information about the termination and any transitional arrangements that may be necessary. The commission's decision provides clarity on the termination of enterprise agreements in the face of significant industry changes and the importance of good faith negotiations.

Orders