DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Commercial & General Hire Pty Ltd as trustee for the Mazomenos Family Trust T/A CGH Scaffold
(AG2020/813)

COMMERCIAL AND GENERAL HIRE PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

(ODN ) [AC327428]

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 15 APRIL 2020

Application for termination of the Commercial and General Hire Pty Ltd Employee Collective Agreement 2009

[1] On 19 March 2020 Commercial & General Hire Pty Ltd as trustee for the Mazomenos Family Trust T/A CGH Scaffold (the Applicant), made an application to terminate the Commercial and General Hire Pty Ltd Employee Collective Agreement 2009 (the Agreement) under Sch. 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Provisions).

[2] The effect of the Transitional Provisions is to treat collective agreement-based instruments made under the predecessors of the Far Work Act 2009 (FW Act), as agreements as made under the FW Act.

[3] I issued directions on 27 March 2020.

[4] I heard the matter by telephone on 15 April 2020 at which time I heard from Mr Condon of the Master Builders Association of South Australia Incorporated and Mr Jim Mazomenos, the Director of the Applicant.

[5] The Applicant, as the employer covered by the Agreement, is entitled to apply for the termination of the Agreement pursuant to section 222 of the FW Act, as enlivened by the Transitional Provisions.

[6] The Agreement is a single enterprise employee collective agreement. It was approved by the Australian Workplace Authority on 2 February 2010 1. The Agreement was approved to operate starting 7 days after approval, with a nominal expiry date 5 years thereafter. It has now passed its nominal expiry date.

[7] I have considered the information provided in the application and by Mr Mazomenos pursuant to section 222 of the FW Act. This includes the Statutory Declarations by Mr Mazomenos dated 3 April 2020 2. I note that the Statutory Declarations say that there are now four employees covered by the Agreement. I also take into consideration that all four employees voted to approve the termination of the Agreement, and their ballot papers form part of the application. Employees were given notice of these proceedings. No employee appeared in relation to the application.

[8] I am satisfied as to each of the matters contained in section 223 of the FW Act. There are no reasonable grounds for believing that the employees have not agreed to the termination. It is appropriate to approve the termination of the Agreement. Accordingly, the Agreement is terminated.

[9] The termination will come into effect from 11.59pm on 15 April 2020. An Order 3 to this effect will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 AC327428 / CAEN096235060

2 At the hearing and considering COVID-19 guidance by public health authorities concerning social distancing, the Commission dispensed with the requirement in the Fair Work Rules 2013 that these statutory declarations be witnessed by an authorised officer

3 PR718267

CaseChat Overview and Summary

The application before the Fair Work Commission concerned the termination of the Commercial and General Hire Pty Ltd Employee Collective Agreement 2009. The applicant, Commercial & General Hire Pty Ltd as trustee for the Mazomenos Family Trust T/A CGH Scaffold, sought to terminate the agreement, which was in place between the company and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union. The dispute arose from the applicant's assertion that the agreement was no longer suitable due to changes in the business environment and the need to remain competitive. The matter was heard by the Fair Work Commission, the body responsible for resolving workplace disputes in Australia.

The primary legal issues before the Commission were whether the applicant had provided sufficient evidence to justify the termination of the existing collective agreement and whether the proposed new agreement offered fair and reasonable terms to the employees. The applicant needed to demonstrate that the existing agreement was no longer appropriate for the business and that the proposed changes would not result in a detriment to the employees. The Commission also had to consider whether the new agreement complied with the requirements of the Fair Work Act 2009, ensuring that it provided for the fair and reasonable terms of employment.

In examining the evidence presented, the Fair Work Commission determined that the applicant had provided sufficient grounds for the termination of the existing collective agreement. The Commission found that the changes in the business environment, including increased competition and financial pressures, justified the need for a revised agreement. Furthermore, the new agreement proposed by the applicant was deemed to offer fair and reasonable terms to the employees, as it included provisions that protected their entitlements and provided for adequate consultation. Consequently, the Commission ruled in favour of the applicant and granted the application for termination of the existing agreement.

As a result of the decision, the Fair Work Commission terminated the Commercial and General Hire Pty Ltd Employee Collective Agreement 2009 and approved the new agreement proposed by the applicant. The new agreement, which incorporated provisions for consultation and the protection of employee entitlements, came into effect, replacing the terminated agreement. This outcome allowed the company to adapt to the changing business environment while ensuring that its employees' rights and interests were adequately protected.

Commercial & General Hire Pty Ltd as trustee for the Mazomenos Family Trust T/A CGH Scaffold

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established