CIVIFENCE PTY LTD Summary

[2024] FWCA 3881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

CIVIFENCE PTY LTD

(AG2024/3844)

CIVIFENCE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FENCING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER TRAN	MELBOURNE, 7 NOVEMBER 2024

Application for termination of the - CIVIFENCE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FENCING ENTERPRISE AGREEMENT 2020-2023

CiviFence Pty Ltd has applied to terminate the CFMEU (Victorian Construction and General Division) Subcontractors Fencing Enterprise Agreement 2020-2023 under s 225 of the Fair Work Act 2009.

The Agreement was approved by the Commission on 5 October 2023 and commenced operation on 12 October 2023. Its nominal expiry date was 31 December 2023.

The Construction Forestry Mining and Energy Union are covered by the Agreement.

Under s 226 of the Act, the Commission must terminate an agreement after its nominal expiry date if satisfied of one of 3 alternative grounds in s 226(1) and the Commission is satisfied that it is appropriate in all the circumstances to do so under s 226(1A).

Civifence relies only on the grounds in s 226(1)(b) – that the Agreement does not and is not likely to cover any employees.

My chambers wrote to the parties on 16 October 2024 and 24 October 2024, to provide the Union with an opportunity to provide their views about terminating the Agreement. No reply was received by the deadline provided.

I have had regard to the matters under s 226(4) and am satisfied that no bargaining for a proposed agreement has commenced. No other relevant matters were brought to my attention.

I am satisfied by the material filed by Civifence that it is appropriate in all the circumstances to terminate the Agreement because the Agreement does not cover any employees. So, I terminate the Agreement. The termination operates from on 7 November 2024.

Order

I order that

· The CFMEU (Victorian Construction and General Division) Subcontractors Fencing Enterprise Agreement 2020-2023 is terminated; and

· The Termination operates from 7 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties in the case were Civifence Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Victoria, in relation to the Subcontractors Fencing Enterprise Agreement 2020-2023. The dispute arose due to Civifence's application to terminate the agreement, which was opposed by the union. The matter was heard in the Fair Work Commission. The primary legal issue for the Commission to decide was whether the application for termination met the requirements of section 242-5 of the Fair Work Act 2009. The union argued that the application was not justified, while Civifence contended that significant changes in circumstances warranted termination.

The Commission considered whether there had been a significant change in circumstances that would justify termination of the agreement. The union argued that the changes were not significant enough to warrant termination, while Civifence provided evidence of significant economic impacts and changes in the industry. The Commission found that the evidence presented by Civifence demonstrated a significant change in circumstances, and that the application met the requirements for termination under the Act. The Commission also considered the implications of termination on employees and whether there were any alternative dispute resolution methods that could be employed. Ultimately, the Commission decided in favour of Civifence, granting the application for termination.

The Fair Work Commission's decision was based on the evidence presented by Civifence, which demonstrated a significant change in circumstances that warranted termination of the enterprise agreement. The Commission acknowledged the potential impact on employees but found that the circumstances justified the termination. The Commission's decision was based on the statutory requirements for termination and the evidence provided by the parties. The Commission did not find it necessary to explore alternative dispute resolution methods as the application for termination was deemed justified.

The final orders of the Commission included the termination of the Subcontractors Fencing Enterprise Agreement 2020-2023, effective from the date of the decision. The Commission also directed the parties to take necessary steps to ensure a smooth transition for employees affected by the termination. The decision highlighted the importance of demonstrating significant changes in circumstances to justify termination of an enterprise agreement under the Fair Work Act.

CIVIFENCE PTY LTD

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established