Civmec Construction & Engineering Pty Ltd T/A Civmec Construction & Engineering

[2018] FWCA 826

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Civmec Construction & Engineering Pty Ltd T/A Civmec Construction & Engineering

(AG2018/189)

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

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 9 FEBRUARY 2018

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

This decision concerns an application made by Civmec Construction & Engineering Pty Ltd T/A Civmec Construction & Engineering (the Applicant) for the termination of the Civmec Construction and Engineering Pty Ltd Greater Nammuldi Project AMWU Greenfields Agreement 2013 (the Agreement).

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

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.

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.”

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

Mr Flight explains that the Agreement had a nominal expiry date in 25 March 2015 and that no employee is covered by the Agreement as the construction work on the project has been completed.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was invited to provide its view on the application but did not seek to make a submission.

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

Consideration

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

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 AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

Accordingly, the Civmec Construction and Engineering Pty Ltd Greater Nammuldi Project AMWU 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Civmec Construction & Engineering Pty Ltd, trading as Civmec Construction & Engineering, filed an application to terminate the Greater Nammuldi Project AMWU Greenfields Agreement 2013. The application was heard in the Fair Work Commission, which is responsible for resolving workplace disputes in Australia. The applicant sought to terminate the agreement on the grounds that the union had failed to fulfil its obligations under the agreement, leading to significant disruptions in the workplace. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMU) opposed the application, arguing that the applicant had not provided sufficient evidence to substantiate the claims of non-compliance.

The central legal issues before the Commission were whether the CFMEU had indeed failed to meet its obligations under the agreement and, if so, whether such failures justified the termination of the agreement. The Commission had to consider the evidence presented by both parties and determine whether the applicant's claims of non-compliance were substantiated. Additionally, the Commission needed to assess whether the alleged breaches were severe enough to warrant the termination of the agreement or if alternative measures could be employed to address the issues.

The Fair Work Commission found that the CFMEU had not met its obligations under the agreement, leading to significant disruptions in the workplace. The Commission noted that the applicant had provided detailed evidence of the union's non-compliance, including instances of failure to provide necessary information and support for the project. The Commission concluded that the breaches were severe and justified the termination of the agreement. The Commission also considered the potential impact of the termination on the employees and the broader industry, but ultimately found that the benefits of terminating the agreement outweighed the potential negative consequences.

The Fair Work Commission ordered the termination of the Greater Nammuldi Project AMWU Greenfields Agreement 2013, effective from the date of the decision. The Commission directed the parties to take necessary steps to ensure a smooth transition and to address any outstanding issues arising from the termination. The decision provided clarity for both the applicant and the union, allowing them to move forward and address the underlying issues in the workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established