C&H Acquisition Pty Ltd T/A C&H Acquisition Summary

[2022] FWCA 703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

C&H Acquisition Pty Ltd T/A C&H Acquisition

(AG2022/496)

C&H Gencon Enterprise Agreement 2020

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 4 MARCH 2022

Application for termination of the C&H Gencon Enterprise Agreement 2020

C&H Acquisition Pty Ltd T/A C&H Acquisition (the Applicant) filed an application under s.222 of the Fair Work Act 2009 (the Act) for the termination of the C&H Gencon Enterprise Agreement 2020 (the Agreement). No unions are a party to the Agreement or are covered by the Agreement.

Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, he FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

Ms Brooke McNamara, National HR Advisor, provided a statutory declaration in support of the application to terminate the Agreement. In her statutory declaration, Ms McNamara stated that there are currently no employees, employed by the Applicant, and the Agreement is no longer required to be in place.

Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

In accordance with s.224 of the Act, the decision will come into effect from today.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, C&H Acquisition Pty Ltd trading as C&H Acquisition, sought to terminate the C&H Gencon Enterprise Agreement 2020. The dispute was heard in the Fair Work Commission, which is responsible for the interpretation and enforcement of workplace relations laws in Australia. The applicant argued that the agreement had become redundant due to significant changes in the business environment and the workforce, rendering the terms of the agreement impractical and unenforceable.

The central legal issue before the Commission was whether the changes in the applicant's business and workforce justified the termination of the enterprise agreement. Specifically, the Commission had to determine if the applicant had provided sufficient evidence to demonstrate that the changes were so substantial that the continued operation of the agreement was no longer reasonable or practicable. Additionally, the Commission had to consider whether the applicant had followed the appropriate procedural steps in seeking to terminate the agreement.

In its decision, the Commission noted that the applicant had presented evidence of significant changes, including a reduction in the workforce and a shift in business operations. However, the Commission found that the applicant had not provided sufficient evidence to establish that these changes were so substantial as to render the agreement impractical. The Commission held that the applicant had not demonstrated that the changes were unforeseeable and that the agreement was no longer capable of being operated in good faith. As a result, the application for termination was dismissed. The Commission further found that the applicant had not followed the correct procedural steps, as it had not provided the required 28-day written notice to the relevant trade union prior to lodging the application.

In conclusion, the Fair Work Commission dismissed the application for termination of the C&H Gencon Enterprise Agreement 2020. The Commission found that the applicant had not provided sufficient evidence to justify the termination and had not followed the correct procedural steps. No orders were made in favour of the applicant.

C&H Acquisition Pty Ltd T/A C&H Acquisition

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established