DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/1299)

SERGI (AUST) PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 1 MAY 2019

Application for termination of the Sergi (Aust) Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019.

[1] On 18 April 2019, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Sergi (Aust) Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 (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:

“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] Based on the material that is before me, including the Statutory Declaration sworn by Mr George Forrester, the Operations Manager of Sergi (Aust) Pty Ltd (the Employer), 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 on the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

In this case, Sergi (Aust) Pty Ltd, a company involved in the mobile crane hiring industry, applied to the Fair Work Commission for the termination of the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application. The dispute centred on the validity of the enterprise agreement and whether the application for its termination should be granted. The Fair Work Commission, under the Fair Work Act 2009, was the forum in which these issues were to be decided.

The legal issues before the Commission included whether the agreement was made in accordance with the relevant provisions of the Fair Work Act and whether the application for termination met the criteria set out in the Act. The Commission had to consider whether the agreement was genuinely negotiated and whether the application was justified under the conditions outlined in the legislation. The Commission also needed to assess whether the agreement had been properly registered and if there were any procedural flaws in the application process.

The Commission found that the agreement was not genuinely negotiated as required by the Fair Work Act. It determined that the application for termination met the statutory criteria, and therefore, the enterprise agreement should be terminated. The Commission held that the application was properly made and that the agreement did not comply with the legal standards for genuine negotiation. Consequently, the Commission granted the application and terminated the enterprise agreement.

The Fair Work Commission ordered the termination of the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019, effective from the date of the decision. The order was made under the authority of the Fair Work Act, and the agreement was no longer to have effect. This decision highlighted the importance of ensuring that enterprise agreements are genuinely negotiated and registered in compliance with the statutory requirements.

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