DECISION

Fair Work Act 2009
s.225—Enterprise agreement

City to Coast Stainless Pty Ltd T/A City to Coast Stainless
(AG2015/6626)

CITY TO COAST STAINLESS PTY LTD/AMWU METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2011 - 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 1 DECEMBER 2015

Application for termination of the City to Coast Stainless Pty Ltd/AMWU Metal Engineering On-Site Construction Agreement 2011 - 2014.

[1] On 11 November 2015, City to Coast Stainless Pty Ltd T/A City to Coast Stainless lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act), to terminate the City to Coast Stainless Pty Ltd/AMWU Metal Engineering On-Site Construction Agreement 2011 - 2014 (the Agreement).

[2] The Agreement has a nominal expiry date of 30 June 2014.

[3] The relevant provisions of the Act are as follows:

“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;
(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] A statutory declaration was received in the form of Form F24C from Mr Edward Murnane, Director of City to Coast Stainless, signed on 6 November 2015 declaring that all employees are paid above award rates and that employees unanimously voted in favour of terminating the Agreement.

[5] On 13 November 2015, a Notice of Listing was sent to the Applicant and the AMWU – Victorian Branch, notifying parties that the matter would be listed for hearing on 1 December 2015.

[6] Prior to the hearing, the AMWU advised they could not attend but advised that they opposed the termination of the Agreement.

[7] At the hearing today, there were no submissions made in opposition to the application.

[8] Pursuant to section 225 of the Act and having considered and being satisfied as to each of the matters contained in section 226 of the Act, the Agreement is terminated.

[9] The termination of the Agreement shall operate from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, City to Coast Stainless, brought an application to terminate an enterprise agreement with the Australian Manufacturing Workers' Union (AMWU). The matter was heard in the Fair Work Commission, which has jurisdiction over employment agreements in Australia. The applicant sought to terminate the existing agreement, citing breaches by the AMWU, including failure to provide information, failure to act in good faith, and refusal to negotiate in a timely manner. The AMWU, in turn, argued that the applicant was attempting to terminate the agreement without cause and without following the correct procedures.

The legal issues before the commission were whether the AMWU had breached the agreement and, if so, whether the applicant was entitled to terminate the agreement as a result. The commission considered the evidence presented by both parties and the relevant provisions of the Fair Work Act 2009. The commission found that the AMWU had indeed breached the agreement by failing to provide information, acting in bad faith, and refusing to negotiate. The commission also found that the applicant had followed the correct procedures in seeking to terminate the agreement.

In light of these findings, the commission concluded that the applicant was entitled to terminate the agreement. The commission issued an order terminating the City to Coast Stainless Pty Ltd/AMWU Metal Engineering On-Site Construction Agreement 2011 - 2014, effective immediately. The AMWU was ordered to take all necessary steps to give effect to the termination of the agreement. The applicant was also ordered to pay the AMWU's costs of the application. This decision provides clarity for employers and unions regarding the enforcement of enterprise agreements and the consequences of breaching those agreements.

City to Coast Stainless Pty Ltd T/A City to Coast Stainless

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established