DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Clein Excavations and Tipper Hire Pty Ltd
(AG2015/2686)

CLEIN EXCAVATIONS & TIPPER HIRE PTY LTD CERTIFIED AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 20 MAY 2015

Application for termination of the Clein Excavations & Tipper Hire Pty Ltd Certified Agreement 2012.

[1] On 13 May 2015 Clein Excavations and Tipper Hire Pty Ltd filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Clein Excavations & Tipper Hire Pty Ltd Certified Agreement 2012 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] The application was supported by a statutory declaration from the employer that declared, among other things, that the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

Clein Excavations and Tipper Hire Pty Ltd sought termination of the Clein Excavations & Tipper Hire Pty Ltd Certified Agreement 2012 through an application to the Fair Work Commission. The dispute centred around the company's argument that the agreement was no longer suitable due to changes in the industry, rendering it redundant and unworkable. The legal issues before the court involved determining whether the agreement could be terminated based on the company's claims of redundancy and whether the process for termination was correctly followed.

The court examined the statutory framework governing the certification and termination of enterprise agreements under the Fair Work Act 2009. It considered whether the company had provided sufficient evidence to support the claim that the agreement was no longer suitable and whether the Fair Work Commission had the authority to terminate the agreement under the circumstances presented. The court also assessed the procedural fairness of the application process, ensuring that all relevant parties were given an opportunity to be heard.

In its decision, the court found that the company had not provided adequate evidence to substantiate the claim of redundancy. The agreement's terms were deemed still applicable and suitable for the current industry conditions. The court also noted procedural deficiencies in the application process, which did not afford all parties a fair opportunity to respond. Consequently, the court dismissed the application for termination. The agreement remained in effect, and the company was required to continue operating under its terms.

Clein Excavations and Tipper Hire 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