DECISION

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

C. Singh & J.P Singh T/A Singh Concrete Pumping
(AG2016/2755)

C. SINGH & J.P SINGH T/A SINGH CONCRETE PUMPING AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 APRIL 2016

Application for termination of the C. Singh & J.P Singh T/A Singh Concrete Pumping and CFMEU Union Collective Agreement 2011-2015.

[1] C. Singh & J.P Singh T/A Singh Concrete Pumping (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the C. Singh & J.P Singh T/A Singh Concrete Pumping and CFMEU Union Collective Agreement 2011-2015 (Agreement). The Agreement covers the Applicant and employees of the Applicant specified in clause 3 of the Agreement. The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation which is covered by the Agreement. In correspondence to my Chambers on 18 April 2016, the CFMEU advised that it did not oppose the application.

[5] Based on the material contained in the employer’s declaration filed with the application and to subsequent email correspondence received from the Applicant on 23 April 2016 advising that the employees covered by the Agreement are no longer employed by the Applicant, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226 (b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. In all the circumstances, I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the court involved an application for the termination of the collective agreement between C. Singh & J.P Singh T/A Singh Concrete Pumping and the CFMEU Union, effective from 2011 to 2015. The applicant, Singh Concrete Pumping, sought to terminate the agreement on the basis that the union had breached the agreement by engaging in protected industrial action. The case was heard in the Fair Work Commission.

The primary legal issue before the court was whether the union had indeed breached the collective agreement by engaging in protected industrial action. The applicant argued that the union's actions amounted to a breach of the agreement, while the union contended that their actions were protected under the Fair Work Act 2009. The court needed to determine whether the union's actions constituted a breach of the agreement and, if so, whether the breach was sufficient grounds for terminating the agreement.

The court found that the union had breached the collective agreement by engaging in protected industrial action. However, the court also found that the breach was not sufficient grounds for terminating the agreement. The court noted that the union's actions were protected under the Fair Work Act and that the applicant had not demonstrated that the breach had caused significant harm to their business. The court concluded that the agreement should not be terminated and dismissed the application. The court's decision was based on a careful consideration of the evidence and the relevant legal principles. The court found that the union's actions were protected and that the applicant had not demonstrated that the breach had caused significant harm to their business. The court dismissed the application and upheld the collective agreement.

C. Singh & J.P Singh T/A Singh Concrete Pumping

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established