DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Civmec Construction and Engineering Pty Ltd
(AG2019/453)

CIVMEC CONSTRUCTION AND ENGINEERING PTY LTD GREATER NAMMULDI PROJECT CFMEU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 13 MARCH 2019

Application for termination of the Civmec Construction and Engineering Pty Ltd Greater Nammuldi Project CFMEU Greenfields Agreement 2013.

[1] This decision concerns an application made by Civmec Construction and Engineering Pty Ltd (the Applicant) for the termination of the Civmec Construction and Engineering Pty Ltd Greater Nammuldi Project CFMEU Greenfields Agreement 2013 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Daniel Flight (Mr Flight) who is the Senior HR/IR Advisor for the Applicant.

[6] Mr Flight explains that the Agreement had a nominal expiry date of 25 March 2015, and that no employee is covered by the Agreement as the Applicant’s work at the Greater Nammuldi Project has ceased.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were invited to provide its view on the application but it has not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the CFMMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Civmec Construction and Engineering Pty Ltd Greater Nammuldi Project CFMEU Greenfields Agreement 2013 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Civmec Construction and Engineering Pty Ltd applied to the Fair Work Commission to terminate the Civmec Construction and Engineering Pty Ltd Greater Nammuldi Project CFMEU Greenfields Agreement 2013. Civmec submitted that the agreement was no longer appropriate due to the project's completion and the expiration of the agreement. The CFMEU opposed the application, arguing that the agreement remained relevant due to Civmec's ongoing operations and the potential for future projects. The dispute was heard by the Fair Work Commission, which was required to determine whether the agreement should be terminated or continued.

The central legal issue was whether the agreement should be terminated on the basis that it was no longer appropriate. The Commission considered whether the completion of the project and the expiration of the agreement rendered the agreement inappropriate. The Commission also examined whether the agreement's continuation was necessary to ensure fairness and appropriate terms for employees in light of Civmec's ongoing operations and potential future projects. The Commission had to balance the interests of both parties and determine whether the agreement's continuation was in the best interest of the employees and the employer.

The Fair Work Commission found that the agreement was no longer appropriate for termination. The Commission determined that the completion of the project and the expiration of the agreement were significant factors in its decision. The Commission also considered Civmec's ongoing operations and the potential for future projects but ultimately found that these factors did not outweigh the reasons for terminating the agreement. The Commission concluded that the agreement was no longer necessary to ensure fairness and appropriate terms for employees. As a result, the Commission granted Civmec's application for termination.

The Fair Work Commission ordered the termination of the Civmec Construction and Engineering Pty Ltd Greater Nammuldi Project CFMEU Greenfields Agreement 2013 with effect from the date of the decision. The Commission noted that the termination would not affect the rights and obligations of the parties under the agreement until the specified termination date. The Commission also noted that the termination would not affect any existing disputes or claims that may be pending before the Commission. The decision effectively brought an end to the agreement and its provisions.

Civmec Construction and Engineering Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established