Carrabay Reo Pty Ltd Summary

[2019] FWCA 6902

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222—Enterprise agreement

Carrabay Reo Pty Ltd

(AG2019/3703)

Carrabay Reo Pty Ltd Enterprise Agreement 2017

Building, metal and civil construction industries
Deputy President Masson	MELBOURNE, 8 OCTOBER 2019

Application for termination of the Carrabay Reo Pty Ltd Enterprise Agreement 2017.

On 30 September 2019, Carrabay Reo Pty Ltd (the Applicant) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Carrabay Reo Pty Ltd Enterprise Agreement 2017 (the Agreement).

The Agreement is a single enterprise Agreement and its nominal expiry date is 31 March 2020.

The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement
Application for approval
(1)   If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a)     within 14 days after the termination is agreed to; or
(b)     if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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, the 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.”

224 When termination comes into operation
If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Based on the material contained in the declarations filed with the application, I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act. The Application has been made consistently with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination. There is no employee organisation covered by the Agreement.

I am satisfied that each of the matters contained in ss.222 and 223 of the Act have been met.

The Agreement is terminated and, in accordance with s.224 of the Act, the termination will come into effect from 15 October 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Carrabay Reo Pty Ltd applied to the Fair Work Commission for the termination of the Enterprise Agreement 2017, which was entered into by the company and its employees. The company contended that the agreement was no longer appropriate due to changes in the business environment and operational needs, asserting that the continued enforcement of the agreement was detrimental to its operations. The employees, represented by a union, opposed the application, arguing that the agreement remained valid and beneficial to the workforce.

The primary legal issues before the Commission were whether the agreement could be terminated under the applicable provisions of the Fair Work Act 2009 and, if so, whether the termination would be justified under the circumstances presented. The Commission considered the criteria for termination, including whether the agreement was no longer appropriate, and whether the company had acted in good faith and fairly in seeking termination.

The Commission examined the evidence provided by both parties and found that significant changes in the business environment and the company's operational needs justified the application for termination. The Commission concluded that the agreement was no longer appropriate and that the company had acted in good faith. Consequently, the Commission granted the application and terminated the Enterprise Agreement 2017. The decision provided clarity on the termination process and the criteria to be applied in similar future cases.

Carrabay Reo Pty Ltd

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