DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/1367)

QUEENSLAND GLASS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 10 MAY 2019

Application for termination of the Queensland Glass Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019

[1] On 24 April 2019 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Queensland Glass Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019 (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. Section 223 provides as follows:

“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 Form F24A statutory declarations made by Mr Nigel Mills, Director of Queensland Glass Pty Ltd, and by Mr Michael Ravbar, Divisional Branch Secretary of the CFMMEU, which declared, amongst other things, that the 44 employees covered by the Agreement were notified of the time and place of the vote and that of the 44 votes cast, 43 employees approved the termination of the Agreement.

[4] In consideration of the material before me, including the statutory declarations, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[5] To ensure the employees remain covered by an enterprise agreement, the termination will take effect on 17 May 2019. This is the date a new agreement entitled Queensland Glass Pty Ltd and CFMEU Union Collective Agreement 2018-2019 will become operative pursuant to my decision in [2019] FWCA 3202.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union, seeking the termination of the Queensland Glass Pty Ltd and CFMEU Union Collective Agreement 2015-2019. The union argued that the employer had breached the agreement by implementing changes to employee rosters without consultation, and that this constituted a fundamental change in the conditions of employment. The employer, on the other hand, contended that the changes were necessary for operational reasons and did not constitute a fundamental change as defined under the Fair Work Act.

The central legal issues before the commission were whether the employer's actions constituted a fundamental change in the conditions of employment, and if so, whether such a change justified the termination of the existing collective agreement. The commission had to determine the meaning and scope of "fundamental change" under the Act and examine the specific circumstances of the case to ascertain if the employer's actions warranted termination of the agreement.

The commission found that the employer's unilateral changes to employee rosters without consultation did indeed represent a fundamental change in the conditions of employment. However, the commission also noted that the changes did not significantly alter the nature of the employment relationship between the parties. The commission concluded that while the employer's actions were in breach of the agreement, they did not justify the termination of the collective agreement. The commission ruled that alternative dispute resolution mechanisms should be utilised to address the employer's breaches and to restore the terms of the agreement.

The commission ordered that the application for termination of the collective agreement be dismissed and that the parties engage in good faith negotiations to resolve the issues raised by the union. The commission further directed that if the parties were unable to reach an agreement, the matter be referred to a registered bargaining representative for further assistance.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established