Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 5002

[2021] FWCA 5002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6418)

ROBERTS PIZZAROTTI (NSW) PTY LIMITED / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 13 AUGUST 2021

Application for termination of the Roberts Pizzarotti (NSW) Pty Limited / CFMEU Collective Agreement 2019-2022.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/the Union) made an application for approval of the Roberts Co. (NSW) Pty Limited / CFMEU Collective Agreement 2019-2023 (“the 2021 Agreement”) [[2021] FWCA 5001, PR732803] and also for the termination of the Roberts Pizzarotti (NSW) Pty Limited / CFMEU Collective Agreement 2019-2022 (“the 2019 Agreement”). This decision deals with the application for the termination of the 2019 Agreement.

[2] The CFMMEU replies upon a declaration made by Ms Rita Mallia, NSW State President of the Construction and General Division.

[3] The employer party changed its corporate name between the making of the 2019 Agreement and the 2021 Agreement. When the 2019 Agreement was made the employer’s corporate name was Roberts Pizzarotti (NSW) Pty Limited. In 2021 the employer’s corporate name is Roberts Co. (NSW) Pty Limited (“Roberts”). Importantly, the legal entity has not changed, which allows Roberts’ employees to agree to approve the 2021 Agreement and to also agree to terminate the 2019 Agreement.

[4] Section 223 of the Fair Work Act 2009 (Cth) (“the Act”) requires the FWC to approve the termination of an agreement if certain conditions apply:

“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.”

[5] Section 223(a) requires that I be satisfied that Roberts has complied with s.220(2)(b) of the Act. Ms Mallia’s declaration indicates that Roberts sent relevant employees a document with their payslip (or by email) advising that they would be asked to vote on the proposed termination of the 2019 Agreement by show of hands.

[6] A meeting took place on 15 July 2021 at the Concord Hospital Redevelopment Project. At the meeting employees were advised that the proposal to terminate the 2019 Agreement arose because of the change of Roberts’ corporate name and to update a small number of conditions. At the meeting the CFMMEU and Roberts were both supportive of the termination of the 2019 Agreement.

[7] Of the 35 employees who were covered by the 2019 Agreement, 29 votes were cast. All 29 employees who voted supported the termination of the 2019 Agreement. Accordingly, I am satisfied that the termination was agreed to by a majority in accordance with s.221(1) and s.223(b).

[8] There are no other reasonable grounds for considering that the employees have not agreed to the termination (per s.223(c)). Upon termination of the Agreement, the employees will be covered by the Roberts Co. (NSW) Pty Limited / CFMEU Collective Agreement 2019-2023.

[9] Having considered the requirements set out in s.223 of the Act, the termination of the 2019 Agreement is approved. The termination of the 2019 Agreement will operate from 20 August 2021.

[10] In accordance with s.224 of the Act, the decision will come into effect from 20 August 2021.

DEPUTY PRESIDENT

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