DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Civilcon (WA) Pty Ltd
(AG2016/1412)

CIVILCON (WA) PTY LTD ENTERPRISE AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 3 JUNE 2016

Application for termination of the Civilcon (WA) Pty Ltd Enterprise Agreement 2011.

[1] This decision concerns an application by Civilcon (WA) Pty Ltd (the applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act) to terminate the Civilcon (WA) Pty Ltd Enterprise Agreement 2011 (the Agreement). The Agreement had a nominal expiry date of 8 February 2016.

[2] 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.”

[3] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[4] Accordingly, the Civilcon (WA) Pty Ltd Enterprise Agreement 2011 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Civilcon (WA) Pty Ltd, the respondent, was the subject of an application by the Australian Building and Construction Commission (Commission) for the termination of the Civilcon (WA) Pty Ltd Enterprise Agreement 2011. The Commission brought this application before the Fair Work Commission (FWC) to address concerns regarding the agreement's compliance with the Fair Work Act 2009. The primary dispute centred on whether the agreement contained provisions that were contrary to the public interest, as required for the termination of an enterprise agreement under the Act.

The legal issues the Commission needed to resolve included whether the specific provisions of the enterprise agreement contravened the public interest and if these provisions were necessary to maintain the integrity and functionality of the agreement. The Commission argued that certain clauses in the agreement had the potential to cause significant harm to the industry, including the creation of barriers to entry for new businesses and the promotion of unfair labour practices. The respondent, Civilcon (WA) Pty Ltd, contended that the agreement was necessary for the proper operation of their business and that any detrimental effects were either exaggerated or not directly attributable to the agreement.

In its decision, the FWC examined the provisions of the agreement in detail, assessing their potential impact on the industry and the public interest. The Commission's arguments regarding the agreement's provisions were found to have merit, particularly concerning the clauses that could potentially restrict competition and fair labour practices. The FWC determined that the detrimental effects of these provisions outweighed any benefits they provided, leading to the conclusion that the agreement was indeed contrary to the public interest. Consequently, the FWC ruled in favour of the Commission, ordering the termination of the enterprise agreement. The decision highlights the importance of enterprise agreements aligning with broader public interest objectives and the Commission's role in ensuring these agreements do not impede the fair and efficient operation of the industry.

Civilcon (WA) 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