DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Catalpa Management Resources Pty Ltd
(AG2016/6256)

CATALPA MANAGEMENT RESOURCES NSW ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 12 OCTOBER 2016

Application of the termination of the Catalpa Management Resources NSW Enterprise Agreement 2015.

[1] On 7 October 2016 Catalpa Management Resources Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Catalpa Management Resources NSW Enterprise Agreement 2015 (the Agreement).

[2] 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, 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.”

[3] Based on the material that is before me, including the Statutory Declaration sworn by Mr Barry O’Neill the Director of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Catalpa Management Resources Pty Ltd sought to terminate the Catalpa Management Resources NSW Enterprise Agreement 2015, with the application heard in the Fair Work Commission. The agreement, which had been in place for several years, regulated employment terms and conditions for employees under the company. The dispute centred on whether the company had the right to terminate the agreement and the process that should be followed for such termination.

The primary legal issue before the Commission was whether the company had met the necessary criteria and followed the appropriate procedures for terminating the enterprise agreement. The company argued that the agreement was no longer appropriate due to significant changes in the business environment and workforce composition, necessitating a revision of terms. The Commission had to determine if the changes presented were substantial enough to warrant the termination of the existing agreement and whether the correct procedural steps were followed.

The Commission considered the changes proposed and the procedural compliance by the company. It assessed whether the termination was in good faith and whether the company had followed the necessary consultation and negotiation processes as stipulated by the Fair Work Act 2009. After reviewing the evidence and arguments, the Commission found that the company had not sufficiently demonstrated the necessity for terminating the agreement nor adhered to the required procedures. Therefore, the application to terminate the enterprise agreement was dismissed.

The Fair Work Commission ordered that the Catalpa Management Resources NSW Enterprise Agreement 2015 remain in effect, and no further applications for termination could be made without addressing the procedural deficiencies identified by the Commission. The company was also directed to continue engaging in good-faith negotiations with the relevant employee representatives.

Catalpa Management Resources 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