DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Civmec Construction & Engineering Pty Ltd T/A Civmec Construction & Engineering
(AG2018/187)

CIVMEC CONSTRUCTION & ENGINEERING HOPE DOWNS 4 AWU GREENFIELDS AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 8 FEBRUARY 2018

Application for termination of the CIVMEC Construction & Engineering Hope Downs 4 AWU Greenfields Agreement 2011.

[1] 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 & Engineering Hope Downs 4 AWU Greenfields Agreement 2011 (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 a Senior HR/IR Advisor of the Applicant.

[6] Mr Flight explains that the Agreement had a nominal expiry date in 8 November 2015 and that no employee is covered by the Agreement as the construction work on the project has been completed.

[7] The Australian Workers’ Union (AWU) was invited to provide its view on the application and advised the Commission it does not object to the termination of the Agreement.

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

[11] Accordingly, the CIVMEC Construction & Engineering Hope Downs 4 AWU Greenfields 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

Civmec Construction & Engineering Pty Ltd, trading as Civmec Construction & Engineering, applied for the termination of the Civmec Construction & Engineering Hope Downs 4 AWU Greenfields Agreement 2011. The application was heard in the Fair Work Commission. The dispute centred on the applicability and enforcement of the agreement in light of changes in the operational scope and workforce structure of Civmec Construction & Engineering.

The primary legal issue before the court was whether the agreement should be terminated due to substantial changes in the business operations of Civmec Construction & Engineering. The applicant argued that the original agreement was no longer applicable as the scope of work and workforce had significantly changed, rendering the agreement impractical and unenforceable. The applicant contended that the changes necessitated a new agreement to reflect the current operational realities. The respondent argued that the agreement should remain in effect, asserting that the changes did not fundamentally alter the nature of the work or the employment relationship as outlined in the agreement.

The Fair Work Commission considered the evidence presented by both parties and examined the nature and extent of the changes in Civmec Construction & Engineering's operations. The court found that the changes were significant enough to render the existing agreement impractical. The court concluded that the changes had fundamentally altered the conditions under which the agreement was made, thereby justifying the termination of the existing agreement and the need for a new agreement to accurately reflect the current circumstances. As a result, the Fair Work Commission granted the application for the termination of the agreement.

The Fair Work Commission ordered that the Civmec Construction & Engineering Hope Downs 4 AWU Greenfields Agreement 2011 be terminated and directed both parties to negotiate a new agreement to address the current operational and employment conditions.

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

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established