Catmando Pty Ltd

[2014] FWC 7949

[2014] FWC 7949

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Catmando Pty Ltd
(AG2014/8590)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 10 NOVEMBER 2014

Application for termination of the Catmando Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 – Application dismissed.

[1] On 8 August 2014, Catmando Pty Ltd made application to terminate the Catmando Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 1 (the Agreement) under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] Item 16(1) of the Transitional Act provides:

“Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[3] The application is an application for termination of an enterprise agreement after its nominal expiry date (s.225 of the Fair Work Act 2009 (the Act)).

[4] Section 226 of the Act provides:

“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.”

[5] The parties to this Agreement are Catmando Pty Ltd and the Construction, Forestry Mining and Energy Union (CFMEU).

[6] The CFMEU was also instructed to advise the Commission if they opposed the application. No opposition was expressed by the CFMEU.

[7] On 20 August 2014, I asked my Associate to advise the parties that Catmando Pty Ltd was required to place a notice on its notice board advising employees covered by the Agreement of its application to terminate the Agreement and to provide them with an opportunity to express a view about the termination to the Fair Work Commission (the Commission) and to advise me of the steps taken by it in that regard.

[8] Notwithstanding repeated requests to Catmando Pty Ltd to advise me of the steps taken in respect of advice to its employees about the termination of the Agreement, no advice of such steps was communicated to the Commission by the company. In those circumstances, I have not been able to ascertain and consider the views of the employees covered by the Agreement and I am unable to reach a view as to the appropriateness of the termination of the Agreement. In those circumstances, the application for termination of the Agreement is dismissed.

SENIOR DEPUTY PRESIDENT

 1   AG846356 PR968061.

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