DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Civmec Construction & Engineering Pty Ltd T/A Civmec Construction & Engineering
(AG2018/190)

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

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

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

[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 Pty Ltd Greater Nammuldi Project AWU 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 a Senior HR/IR Advisor of the Applicant.

[6] 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.

[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 Pty Ltd Greater Nammuldi Project AWU 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

Civmec Construction & Engineering Pty Ltd, trading as Civmec Construction & Engineering, applied to the Fair Work Commission for the termination of the Civmec Construction & Engineering Pty Ltd Greater Nammuldi Project AWU Greenfields Agreement 2013. The application was brought under section 238 of the Fair Work Act 2009, where the applicant claimed that the agreement had become redundant due to the cessation of the project for which it was made.

The primary legal issue before the Commission was whether the agreement had indeed become redundant and therefore subject to termination. The applicant argued that the project for which the agreement was made had ceased, rendering the agreement redundant. The Commission needed to assess the applicability of the redundancy provisions in section 238 of the Fair Work Act and determine whether the agreement met the criteria for termination.

The Commission held that the agreement had indeed become redundant as the project for which it was made had permanently ceased. It found that there were no longer any employees of the applicant covered by the agreement and that the agreement had no ongoing application. The Commission concluded that the redundancy provisions of the Fair Work Act applied and ordered the termination of the agreement. The decision was made in favour of the applicant, and the agreement was terminated as of the date of the decision.

The final orders included the termination of the Civmec Construction & Engineering Pty Ltd Greater Nammuldi Project AWU Greenfields Agreement 2013, effective from the date of the decision. The Commission further ordered that the termination be registered with the Australian Industrial Relations Commission as per the requirements of the Fair Work Act.

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